THE LIBRARY
OF
THE UNIVERSITY
OF CALIFORNIA
LOS ANGELES
GIFT OF
I
MANNER OF CITATION ENCYCL. OF FORMS.
Italics are used to suggest the proper
manner of filling 1 out the form to meet
the exigencies of the particular ease.
ENCYCLOPAEDIA
OF
FORMS AND PRECEDENTS
FOR
PLEADING AND PRACTICE, AT COMMON LAW,
IN EQUITY, AND UNDER THE VARIOUS
CODES AND PRACTICE ACTS.
EDITED BY
WILLIAM MACK AND HOWARD P. NASH
UNDER THE SUPERVISION OF
JAMES COCKCROFT,
AUTHOR OF
The American and English Encyclopedia of Law
AND THE
Encyclopedia of Pleading and Practice.
VOL. V.
NORTHPORT, LONG ISLAND, N. Y. .
JAMES D. COCKCROFT.
1898.
COPYRIGHT, 1898,
BY
JAMES COCKCROFT.
MADE BY
WEED-PARSONS PRINTING COMPANY
ALBANY, N. Y.
6-6, 1898
TABLE OF TITLES.
Titles in italic are cross-references.
COMPOUNDING OFFENSES, i.
COMPROMISE, 12.
Concealed Weapons, 29.
CONCEALMENT OF BIRTH OR
DEATH, 30.
Condemnation Proceedings, 36.
CONFESSION AND AVOIDANCE, 37.
CONFESSION OF JUDGMENT, 46.
CONSIDERATION, 114.
CONSOLIDATION OF ACTIONS, 131.
Consolidation of Corporations, 138.
CONSPIRACY, 138.
Constables, 226.
CONTEMPT, 226.
CONTINUANCES AND ADJOURN-
MENTS, 315.
CONTRACT LABOR LAW, 421.
Contracts, 425.
CONTRACTS OF HIRE, 425.
CONTRIBUTION, 433.
CONTRIBUTORY NEGLIGENCE, 458.
Conversion, 461.
CONVICTS, 461.
COPYRIGHT, 466.
Cor am Nobis, 510.
Cor am Vobis, 510.
CORONER'S INQUESTS, 510.
CORPORATIONS, 523.
COSTS, 775.
Counterclaim, 824.
COUNTERFEITING, 824.
County Commissioners, 862
Coupons, 862.
COVENANT, 862.
Covenants, 868.
COVERTURE, 868.
CREDITORS' SUITS, 874.
CRIME AGAINST NATURE, 921
CRIMINAL COMPLAINTS, 930.
CRIMINAL CONVERSATION, 985.
Cross-Bills, 991.
CROSS-COMPLAINTS, 991.
Crossings, 995.
CRUELTY TO ANIMALS, 995.
CRUELTY TO CHILDREN, 1009.
DAMAGES, OFFER TO LIQUIDATE,
1018.
DANGEROUS AND Vicious ANIMALS,
IO2O.
DEAD BODIES AND CEMETERIES,
1030.
609308
COMPOUNDING OFFENSES.
BY Jos. R. LONG.
I. CRIMINAL COMPOUNDING, i.
1. Generally, i.
2. After Prosecution Begun, 8.
II. COMPROMISE BY LEAVE OF COURT, 10.
1. Acknowledgment of Satisfaction, 10.
2. Warrant to Discharge Defendant from Custody, 10.
3. Order Discharging Recognizance, n.
I. CRIMINAL COMPOUNDING.
1. Generally.
Form No. 5967.
(Precedent in 2 Chit. Cr. L. 221; Archb. Cr. PI. 586.)
Middlesex. The jurors for our lord the king upon their oath
present that heretofore, to wit, on the twentieth day of February, in
the sixth year of the reign of our sovereign lord George the Fourth,
by the grace of God of the United Kingdom of Great Britain and
Ireland, king, defender of the Faith, at the parish of St. Paul, Covent
Garden, in the said county of Middlesex* one Richard Roe, with force
and arms, feloniously did steal, take and carry away one lamp, of the ,
value of twenty shillings, of the goods and chattels of one John Doe,
late of the parish of St. Paul, Covent Garden, in the said county of
Middlesex* against the peace of our lord the king, his crown and
dignity: And that the said John Doe, well knowing the premises,
and the said felony to have been by the said Richard Roe so as afore-
said done and committed, but contriving and intending unlawfully
and unjustly to pervert the due course of law, in this behalf, and to
cause and procure the said Richard Roe, for the felony aforesaid, to
escape with impunity, afterwards, to wit, on the twentieth day of
February aforesaid, 1 with force and arms, at the parish of St. Paul,
Covent Garden, aforesaid, unlawfully and for wicked gain's sake, did
compound the said felony with the said Richard Roe, and did then
and there exact, receive, and have of the said Richard Roe the sum of
eighteen shillings, in moneys numbered, for and as a reward for com-
pounding the said felony, and desisting from all further prosecution
1. Where an indictment for com- date, judgment was arrested, although
pounding a felony charged that the the compounding was charged to have
felony was committed on a certain date been committed "afterwards." State
and the compounding at an earlier v. Dandy, I. Brev. (S. Car.) 395.
5 E. of F. P. i. 1 Volumes.
5968. COMPOUNDING OFFENSES. 5969.
against the said Richard Roe for the said felony; [and that the
said John Doe, on the twentieth day of February, last aforesaid,
at the parish of St. Paul, Covent Garden, aforesaid, did thereupon
desist, and from that time hitherto both desisted, from all further
prosecution of the said Richard Roe for the said felony;] 1 to the
great hindrance of justice, in contempt of our said lord the king and
his laws, and against the peace of our said lord the king, his crown
and dignity.
Form No. 5968.
(Precedent in Reg. v. Burgess, 15 Cox C. C. 779.)*
Central Criminal Court, to wit. The jurors for our Lady the
Queen upon their oath present that heretofore, to wit, in the year of
our Lord i8#5, one Arthur Bagley feloniously did steal, take and
carry away certain money, to wit, to the amount of 28s. of the
moneys of Henry Bedford, against the peace of our said Lady the
Queen, her crown and dignity; and that William Henry Burgess, well
knowing the said felony to have been done and committed by the
said Arthur Bagley as aforesaid, and contriving and intending to per-
vert the due course of law and justice, and to cause and procure
the said Arthur Bagley for the felony aforesaid to escape with im-
punity, afterwards, to wit, on the 5th day of July, in the year aforesaid,
in the county of Surrey, and within the jurisdiction of the said court,
unlawfully and for gain's sake did compound the said felony with the
said Arthur Bagley, and did then exact, take, receive and have from
the said Arthur Bagley the sum of #s. for and as a reward for com-
pounding the said felony, and desisting from prosecuting the said
Arthur Bagley, and for procuring that the said Arthur Bagley should
not be prosecuted for the felony aforesaid, to the great hindrance of
justice, in contempt of our said Lady the Queen and her laws, and
against the peace of our said Lady the Queen, her crown and dignity.
Form No. 5969.
(Precedent in Rex v. Gotley, Russ. & Ry. S-jn.) 3
Shropshire, to wit. The jurors [for our lord the king upon their
oath present] 4 that Richard Gotley, late of \Holes Owen, in the county
of Salop^ being an evil disposed person, and not regarding the
statute in such case made and provided, nor fearing the penalties
1. Second Count. In 2 Chit. PI. 221, did abstain from prosecuting and that
the addition of a second count, omitting by reason thereof the thief escaped
the words enclosed by [ ], is suggested, prosecution is unnecessary.
2. A motion was made to quash this 3. This precedent was drawn under
indictment on the ground that it did Stat. 18 Eliz., c. 5, 4. For other forms
not charge any offense, in that it did under English statutes see 2 Chit. Cr.
not allege that the accused desisted L. (sth Amer. from 2d Lond. ed.) 229-
from prosecuting the felon. A convic- 231; Rex v. Crisp, i B. & Aid. 282; Reg.
tion under the indictment was, however, v. Best, 5 Moo. C. C. 124, 9 C. & P. 368,
sustained, the court holding that the of- 38 E. C. L. 159.
fense of compounding is complete when 4. The words enclosed by [ ] will not
the agreement to abstain from prose- be found in the reported case, but have
cuting is made, and hence an allega- been added to render the form com-
tion in the indictment that the accused plete.
2 Volume 5.
5970. COMPOUNDING OFFENSES. 5970.
therein contained, heretofore, to wit, on the 19th day of November, in
the year of our Lord i86*4 with force ai>d arms, at Holes Owen, .in the
county of Salop, by and upon color and pretense of a certain matter
of offense then and there pretended to have been committed by one
Edward Round against a certain penal law, (that is to say) by and
upon color and pretense that heretofore, to wit, on the 30th day of
October, in the year aforesaid, a certain wagon, of which the said
Edward Round was then the owner, having the soje or bottom of the
fellies of the wheels of less breadth or gauge than six inches, did pass
and was drawn upon a certain turnpike road leading to Birmingham,
in the county of Warwick, with more than four horses, to wit, with
six horses, contrary to the form and effect of a certain statute made
and passed in the thirteenth year of the reign of his present majesty,
entitled (setting out title), unlawfully, wilfully and corruptly did com-
pound and agree with the said Edward Round, who was surmised to
have offended against the same statute in manner aforesaid, for the
said pretended offense; and did thereupon then and there, to wit, on
the said 19th day of November, in the year of our Lord iS04 aforesaid,
at Holes Owen aforesaid, without process, take of and from the said
Edward Round a certain sum of money, to wit, the sum of twa
guineas, that is to say, the sum of two pounds and two shillings, of
lawful money of Great Britain, and divers, to wit, three bank of Eng-
land notes for the payment of the sum of one pound each, the said
notes being then and there of large value, to wit, of the value of three
pounds of like lawful money, as and by way of composition for the said
pretended offense, and in order to prevent an action being brought
against him, the said Edward Round, for and in respect of the same,
without the order or consent of any or either of his majesty's courts
at Westminster, and without any lawful authority for so doing, to the
great hindrance and obstruction of public justice, in contempt of our
said lord the king, and his laws, to the evil and pernicious example
[of all others], 1 against the form of the statute [in such case made:
and provided, and] 1 against the peace [of our said lord the king, his,
crown and dignity.] 1
Form No. 5970.
(Ala. Crim. Code (1886), 4899, No. 28.)*
The State of Alabama. } . .. ~ . ,
Dale county. [ Ctrcwt court ' October term ' l897 '
The grand jury of said county charge that, before the finding of
this indictment, John Doe, knowing that one Richard Roe had been
guilty of the commission of burglary, took (or agreed to take) from the
said Richard Roe, money (or other property) to compound (or conceal}
such felony (or to abstain from any prosecution therefor), against the
peace and dignity of the State of Alabama.
Randolph Mason,
Solicitor of the third circuit.
1. The words enclosed by [] will not 2. Precedent. In Watt z-. State, 97
be found in the reported case, but have Ala. 72, the defendant was convicted
been added to render the form complete, and assigned for error that "the in-
Volume 5.
5971. COMPOUNDING OFFENSES. 5972.
Form No. 5971.
(Precedent in People v. Bryon, 103 Cal. 676.)'
[In the Superior Court of the County of Merced, State of California.
The People of the State of California, plaintiff, ) T , . ,
against '/Information for Com-
William Bryan, defendant. ) *?*** a Fdon y-
William Bryon is accused by the district attorney of the said
county of Merced, by this information, of the crime of compounding
a felony, committed as follows: On or about the eleventh day of
December, i895, in the county of Merced aforesaid] 2 one Maurice
Hardy did commit the crime of grand larceny, a felony ; that is to
say, that at said time and place the said Maurice Hardy did wilfully,
unlawfully and feloniously steal and take from the person of E. O.
Mickle, the sum of forty dollars, lawful money of the United States,
said money being the property of and belonging to the said E. O.
Mickle; that said William Bryon, at said time and place, and prior to
the filing of this information, having knowledge of the commission 3
of said crime by said Maurice Hardy, as aforesaid, did take and
receive from the said Maurice Hardy the sum of twenty dollars, lawful
money of the United States, upon the agreement and understanding,
wilfully, unlawfully and feloniously made and entered into with the
said Maurice Hardy, that he, the said William Bryon, would com-
pound and conceal the crime which had been committed as aforesaid
by said Hardy, contrary [to the form, force and effect of the statute
in such case made and provided, and against the peace and dignity
of the people of the state of California.
Dated the third day of January, iS94-
F. G. Ostrander, District Attorney
of said County of Merced^
Form No. 5972.*
State of Colorado, \
Arapahoe County, j "'
Of the January term of the District Court, in the year of our Lord
dictment fails to show the character of yearling, and, to wit, five dollars in
the felony compounded." It was held money, to compound or conceal said
that the indictment was drawn in sub- felony, or to abstain from any prose-
stantial and almost literal compliance cution of said felony."
with section 4006 of the Alabama 1. This information was held suffi-
Criminal Code and with the code form cient under Cal. Pen. Code, 153. For
given in the text, and was not liable to a list of states having similar statutes
the demurrer interposed, which was see infra, note i, p. 5.
rightly overruled. The indictment, 2. The words and figures enclosed
omitting the formal parts, was as fol- by [ ] will not be found in the reported
lows : case, but have been added to render
" Wheeler Watt, then and there hav- the form complete.
ing knowledge of the commission of a 3. "Actual." It is not necessary to
felony, to wit, that Milton Cooper, alias charge that the defendant had knovvl-
Matt Cooper, was then and there guilty edge of the "actual" commission of
of grand larceny, the same being a the crime, although the word "actual"
felony under the laws of Alabama, did is used in the statute. People v. Bryon,
take or receive from the said Milton 103 Cal. 676.
Cooper, alias Matt Cooper, one cow and 4. This form is drawn under Mills'
4 Volume 5.
5973. COMPOUNDING OFFENSES. 5973.
The grand jurors chosen, selected and sworn in and for the county
of Arapahoe, in the name and by the authority of the people of the
state of Colorado, upon their oaths, present that QKZ. Richard Roe, here-
tofore, to wit, on theyr.y/day of December, in the year of our Lord
i8#7, at the city of Denver, in the county of Arapahoe aforesaid, did
then and there feloniously steal, take and carry away one diamond
ring of the value of one hundred dollars, of the property of one Samuel
Short; and that John Doe, late of said county of Arapahoe, afterward,
to wit, on theyfr^/day of January, in the year of our Lord \W8, at the
city of Denver, and county of Arapahoe aforesaid, did then and there
unlawfully and wilfully take of and from the said Richard Roe money,
to wit, fifty dollars (or otherwise describe the thing taken, as goods, chat-
tels, lands, or other reward or promise thereof, to suit the facts), to com-
pound the said criminal offense, so as aforesaid committed by the said
Richard Roe, contrary to the form of the statute in such case made
and provided, and against the peace and dignity of the people of the
state of Colorado.
Form No. 5973. *
State of Maine.
Kennebec, ss. At the Superior Court begun and held at Augusta,
within and for said county of Kennebec, on the first Tuesday of Decem-
ber, in the year of our Lord eighteen hundred and ninety-seven.
The jurors for said state, upon their oath present, that one Richard
Roe, on the first day of November, in the year of our Lord eighteen
hundred and ninety-seven, in the county of Kennebec, did then and
Anno. Stat. Colo. (1891), 1293. Simi- Minnesota. Stat. (1894), 6397,
lar statutes may be found in the follow- 7254.
ing states, to wit: Mississippi. Anno. Code (1892),
Georgia. 3 Code (1895), 323. 987,988.
Illinois. Starr & C. Anno. Stat. Missouri. Rev. Stat. (1889), 3681,
(1896), p. 1249, P ar - 9 2 - 3682.
Nebraska. Comp Stat. (1897), 6841. Montana. Pen. Code (1895), 280.
Ohio. Bates' Anno. Stat. (1897), North Dakota. Rev. Codes (1895),
6901. 6997, 8061.
Wyoming. Rev. Stat. (1887), 959. Oregon. Hill's Anno. Laws (1892),
1. This form is drawn under Me. 1839.
Rev. Stat. (1883), c. 122, g 17. Pennsylvania. Bright. Pur. Dig.
Similar statutes are found in the (1894), p. 403, 14.
states and territories following, to wit: Rhode Island. Gen. Stat. (1896), c,
Arizona. Pen. Code (1887), | 236. 276, 20.
Arkansas. Sand. & H. Dig. (1894), South Dakota. Dak. Comp. Laws
I4SS. (1887), 6385, 7262.
California. Pen. Code (1897), 153. Tennessee. Code (1896), 6690-
Florida. Rev. Stat. (1892), 2592. 6692.
Indiana. Homer's Stat. (1896), g Texas. Pen. Code (1895), art. 291.
2OII, 2012. Vermont. Stat. (1894), 5165.
Iowa. Code (1897), 4889, 4890, Virginia. Code (1887), 3760.
5301. Washington. Ballinger's Anno.
Kansas. 2 Gen. Stat. (1897), p. 330, Codes & Stat. (1897}, 7200.
185, 186. Wisconsin. Sanb. & B. Anno. Stat.
Massachusetts. Pub. Stat. (1882), c. (1889), 4501.
20 5i 17- Precedent. For an information
Michigan. How. Anno. Stat. (1882), drawn under the California statute
9254. cited above see supra. Form No. 5971.
5 Volume 5.
5974. COMPOUNDING OFFENSES. 5974.
there unlawfully, wilfully and feloniously steal, take and carry away
the sum of five hundred dollars, lawful money of the United States,
of the property of one Samuel Short; and that John Doe, of Augusta, in
the said county of Kennebec, laborer, at Augusta, in the said county
of Kennebec, afterward, to wit, on the tenth day of November, in the
year of our Lord eighteen hundred and ninety-seven, then and there
having knowledge of the commission of the said offense, so as afore-
said committed by the said Richard Roe, did then and there unlaw-
fully and wilfully take of and from the said Richard Roe a valuable
consideration, to wit, the sum of one hundred dollars, lawful money of
the United States, with an agreement and understanding then and
there unlawfully and wilfully made and entered into by the said
John Doe with the said Richard Roe, that he the saidy^/z Doe would
compound and conceal the said offense so as aforesaid committed by
the said Richard Roe (or would not prosecute the said Richard Roe by
reason of or would not give evidence of the said offense so as aforesaid com-
mitted by him, the said Richard Roe, but would compound and conceal the
same), against the peace of said state and contrary to the form of the
statute in such case made and provided.
Jacob E. Corbett, Foreman.
Randolph Mason, County Attorney.
Form No. 5974.
(Precedent in State v. Quinlan, 40 Minn. 56.)'
[The District Court for the County of Hennepin and State of
Minnesota.^
The State of Minnesota }
against > Indictment.
Michael Quinlan and Nathaniel W. King. }
Michael Quinlan and Nathaniel W. King are accused by the grand
jury of the county of Hennepin, in the state of Minnesota, by this
indictment, of the crime of compounding a crime, committed as
follows: The said Michael Quinlan and Nathaniel W. King did, on the
20th day of October, A. D. i8#7, at the city of Minneapolis, in said Hen-
nepin county, wilfully, unlawfully and wrongfully take from one Got-
lieb Heisswinger money , to wit, onehundred&o\\w~>, genuine and current
money of the United States of America, a more particular description
of which said money is to the grand jury unknown, upon an agree-
ment then and there made by the said Michael Quinlan and Nathaniel
W. King with said Gotlieb Beisswinger to withhold evidence of a
crime, to wit, the crime of selling [spirituous] 3 liquor without first
having obtained license therefor; which said crime had heretofore,
to wit, on the 12th day of September, A. D. i8#7, been committed by
Christ Snydera.r\& Fred Vongard, in this : that the said Christ Snyder and
1. This form is drawn under Minn, been added to render the form complete.
Stat. (1894), 6397. For a form drawn 3. The word "spirituous" has been
under a similar statute in New York inserted to supply an omission in this
see infra, Form No. 5975. part of the indictment, " selling liquor "
2. The words enclosed by [ ] will not without a license being no offense un-
be found in the reported case, but have der the Minnesota statutes.
6 Volume 5.
5975. COMPOUNDING OFFENSES. 5975.
the said Fred Vongard^- did, on the 12th day of September, A. D. i87, in
said Hennepin county, wilfully, unlawfully and wrongfully sell spiritu-
ous liquor, to wit, one glass of whiskey, 1 to one N. H. King, without
first having obtained license therefor, said Christ Snyder and Fred
Vongard not being then and there a regular licensed druggist, dis-
pensing said liquor in filling a prescription made by a regular, repu-
table and duly licensed physician in the practice of his profession;
said crime not being then and there a case where a compromise is
allowed by law. Contrary to the statute in such case made and pro-
vided, and against the peace and dignity of the state of Minnesota.
Dated at Minneapolis, in said Hennepin county, this 9d day of March,
A. D. 1888.
J.A. Wolverton,
Foreman of the Grand Jury.
Form No. 5975.*
Supreme Court, County of Kings.
The People of the State of New York \
against
John Doe. )
The grand jury of the county of Kings, by this indictment, accuse
John Doe of the crime of compounding a crime, committed as follows:
The said John Doe, on the first day of December, i8#7, at the city
of Brooklyn, in this county, did feloniously, 3 unlawfully and wilfully
take of and from one Richard Roe money, to wit, the sum of one
hundred dollars (or other property, gratuity or reward, or engagement or
promise therefor, as the case may be*), upon an agreement and under-
standing then and there made and entered into by the said John
Doe with the said Richard Roe to compound (or conceal or compound
and conceal or to abstain from a prosecution of the said Richard Roe for
and by reason of or to withhold evidence of} a crime (or a violation of
statute), to wit, the crime of arson in \.\\Q first degree, which said crime
had been theretofore committed by the said Richard Roe, in this
that the said Richard Roe on the first day of November, iS97, about
eleven o'clock in the night of said day, at the city of Brooklyn afore-
said, did feloniously, unlawfully, wilfully and maliciously set fire to
and burn a certain inhabited building there situate, in which there was
at the time a human being, namely, Samuel Short, and being then
and there the property of another, to wit, of the said Samuel Short \
which said crime was not then and there a case where a compromise
is allowed by law.
Randolph Mason,
District Attorney of the County of Kings.
1. The defendants having been con- 2. New York. Pen. Code, 125,
victed on this indictment an order re- Birds. Rev. Stat. (1896), p. 474, i.
fusing a new trial was reversed on See also a similar statute in Minnesota
appeal, on the ground that there was (Minn. Stat. (1894), 6397) and a prece-
a fatal variance between the pleading dent drawn under that statute in
and the proof, the proof being that Got- Form No. 5974, supra.
lieb Beisswinger, who was also known 3. "Feloniously." The word "feloni-
as Christ Snyder, and " William Bun- ously" is to be used only where the
gard " had sold one glass of "beer 1 " offense of compounding is made a
without a license. felony by the statute.
7 Volume 5.
5976. COMPOUNDING OFFENSES. 5976.
2. After Prosecution Begun. 1
Form No. 5976.
(Precedent in 2 Chit. Cr. L. 220.)
(Commencing as in Form No. 5967 ', and continuing down to *) one
John Doe in his own proper person came before John Poe, esquire,
then and yet being one of the Justices of our said lord the king,
assigned to keep the peace of our said lord the king, in and for the
county of Middlesex, and also to hear and determine divers felonies,
trespasses and other misdemeanors in the said county committed,
and then and there upon his oath did charge and accuse one Mary
Jones, the wife of Peter Jones, with feloniously stealing, taking and
carrying away one silver spoon and two silk handkerchiefs, of the
goods and chattels of the said John Doe, upon which the said John
Poe then and there issued out his warrant, under his hand and seal
made in due form of law, for the apprehending and taking the said
Mary Jones to answer and be examined of and concerning the felony
aforesaid, on her as aforesaid charged, and that afterwards, to wit,
on the twentieth day of February aforesaid, the said Mary Jones, the
wife of Peter Jones aforesaid for the said felony, and by virtue of the
said warrant, was taken and arrested, and then and there was
brought before the said John Poe, the justice aforesaid, and then and
there before the same justice, of and concerning the same felony,
was examined, upon which the said John Poe, the justice aforesaid,
did then and there make a certain warrant under his hand and seal in
due form of law, directed to the keeper of Newgate or his deputy,
and thereby commanding the aforesaid keeper, or his deputy, to
receive into his custody the body of the said Mary Jones, so charged
with such felony as aforesaid, and her in custody safely to keep,
until she should be discharged by due course of law. And the
jurors aforesaid, upon their oath aforesaid, do further present, that
the said John Doe, late of the parish of St. Paul, Covent Garden, in
said county of Middlesex, and Richard Roe, late of said parish, well
knowing the premises, and each of them well knowing the same, but
contriving and intending unlawfully and unjustly to pervert the due
course of law in this behalf, and to cause and procure the said Mary
Jones for the felony aforesaid to escape with impunity, afterwards,
to wit, on the twenty-first day of February aforesaid, at the parish
aforesaid, unlawfully and for wicked gain sake, did take upon them-
selves to compound the said felony on the behalf of the said Mary
Jones and then and there did exact, receive and have of the said
Peter Jones, the husband of the said Mary Jones, twenty-six shillings,
in moneys numbered, for and as a reward for compounding the said
felony, and desisting from all further prosecution against the said
1. Precedents. See another form in 2 in 4 Wentw. PI. 329, for compounding
Chit. Cr. L. 221, against third persons an information in the exchequer for
for prevailing upon a woman, on whom not having the words upon the door of
rapes had been committed, to com- the house, agreeable to the Distillers
pound the same with the offenders, act. See also Davis' Precedents of
after the offenders had been imprisoned Indictments, pp. 97, 98.
and were about to be prosecuted; and
8 Volume 5.
5977. COMPOUNDING OFFENSES. 5977.
Mary Jones for the felony aforesaid, to the great hindrance of justice,
to the evil example of all others, in contempt of our said lord the
king, and his laws, and against the peace of our said lord the king,
his crown and dignity.
Form No. 5977.'
In the Marion Circuit Court of Indiana, of \hzjanuary Term, A. D.
1 898.
State of Indiana )
against
John Doe. )
The grand jury of the county of Marion, upon their oath do pre-
sent: That John Doe, on the tenth day of November, A. D. i897, at
the county of Marion aforesaid, came before Jacob E. Corbett, a
justice of the peace of said county, duly elected, commissioned and
qualified to execute and perform the duties of said office, and did
then and there, before said justice, make complaint in writing and
upon oath, in which said complaint the said John Doe did then and
there upon his oath charge one Richard Roe with then lately before
feloniously stealing, taking and carrying away one diamond ring of
the value of one hundred dollars, of the property of the said John Doe, 2
upon which said complaint the said Jacob E. Corbett then and there
issued his warrant in due form of law for the arrest of the said Rich-
ard Roe to answer to, and be examined and dealt with for the felony
aforesaid as to law and justice might appertain; and afterwards, to
wit, on the day and year aforesaid, at the county aforesaid, by virtue
of said warrant and for the felony aforesaid, the said Richard Roe
was duly arrested and taken and carried before the said Jacob E.
Corbett, justice as aforesaid, and duly examined and heard by the
said Jacob E. Corbett, touching and concerning the felony aforesaid,
whereupon the said Jacob E. Corbett, justice as aforesaid, did then
and there make a certain warrant, under his hand and seal, in due
form of law, directed to the keeper of the common jail in said county
of Marion, thereby commanding the said keeper or his deputy to
receive into his custody the body of the said Richard Roe, and him in
custody safely to keep until he should be discharged by due course of
law; and that afterwards, to wit, on the first day of December, in the
said year, and while said cause was pending, at the county aforesaid,
the said John Doe, well knowing the premises, did unlawfully and
wilfully take and receive from the said Richard Roe the sum of fifty
dollars upon an agreement and understanding, then and there made
and entered into by the said John Doe with the said Richard Roe, to
1. This form is drawn under Hornet's Ohio. Bates' Anno. Stat. (1897),
Stat. Ind. (1896), 2013. For similar 6901.
statutes see as follows: South Dakota. Dak. Comp. Laws
Georgia. 3 Code (1895), 324. (1887), 6385.
Minnesota. Stat. (1894), 6397. 2. Under the Ohio statute it has been
New York. Pen. Code, 125 (Birds, held not necessary to aver in the in-
Rev. Stat. (1896), p. 474, i). dictment or prove on the trial that a
North Dakota. Rev. Codes (1895), crime had been committed. Fribly v.
% 6998. State, 42 Ohio St. 205.
9 Volume 5.
5978. COMPOUNDING OFFENSES. 5979.
compound (or discontinue or delay or withhold evidence in aid of } the
said prosecution then so pending for the said crime as aforesaid (or
to encourage or procure the absence of witnesses or other testimony on
the examination or trial of the said charge), contrary to the form of the
statute in such cases made and provided, and against the peace and
dignity of the state of Indiana.
Randolph Mason, Prosecuting Attorney.
II. COMPROMISE BY LEAVE OF COURT.
1. Acknowledgment of Satisfaction.
Form No. 5978.
(Cook's Code Crim. Proc. N. Y. (1891), p. 473, No. 250.)'
State of New York, \
County of Suffolk. \ S:
\,John Doe, of the town of Huntington, county of Suffolk, State of
New York, do hereby acknowledge to have received of Richard Roe,
of the same place, the sum of one hundred dollars in full satisfaction
for the injury to me at said town of Huntington, on the third day of
January, i898, by said Richard Roe, in assaulting and beating me, and
for which assault and battery I made complaint, on oath, on the fifth
day of January, i898, before Abraham Kent, one of the justices of the
peace, and which said complaint is now pending and undetermined;
and I desire that no further proceeding be had against said Richard Roe.
John Doe.
County of Suffolk, ss.
I hereby certify that, on the sixth day of January, \W8, before me
personally appeared John Doe, of the town of Huntington, in said
county, personally known to me to be the same person mentioned in
and who executed the foregoing acknowledgment of satisfaction;
and he acknowledged the execution of the same.
Abraham Kent, Justice of the Peace.
2. Warrant to Discharge Defendant from Custody.
Form No. 5979.
(Cook's Code Crim. Proc. N. Y. (1891), p. 474, No. 251.)*
State of New York, )
County of Suffolk. \ s
In the Name of the People of the State of New York.
To the keeper of the common jail of said county:
1. New York. Pen. Code, 663, Michigan. How. Anno. Stat. (1882),
as amended Laws (1884), c. 63 (Birds. 9481.
Rev. Stat. (1896), p. 474, 3); Pen. Mississippi. Anno. Code (1892),
Code, 664, as amended Laws (1884), 1457.
c. 63 (Birds. Rev. Stat. (1896), p. 475, Montana. Pen. Code (1895),
4)- 2540-2542.
See also similar statutes as follows: Washington. 2 Hill's Anno. Stat.
Iowa. Code (1897), 5622-5625. (1891), 1292-1294, 1598.
10 Volume 5.
5980. COMPOUNDING OFFENSES. 5980.
Whereas, John Doe, upon whose oath Richard Roe was arrested for
assault and battery against the said John Doe, and was duly commit-
ted to your charge on the fifth day of January, i898, and who now
remains under your care;
And whereas, the said John ZWhas duly executed an acknowledg-
ment of satisfaction for said assault before me;
Now, this is to command you forthwith to discharge the said Richard
Roe from your custody in said jail, unless detained upon some other
warrant of commitment.
Dated at Northport, in the town of Huntington, this sixth day of
January, iB98.
Abraham Kent, Justice of the Peace.
3. Order Discharging Recognizance.
Form No. 5980.
(Cook's Code Crim. Proc. N. Y. (1891), p. 474, No. 252.)'
County of Suffolk, ss.
The within named complainant, John Doe, having this day appeared
before me, Abraham Kent, a justice of the peace of the county of
Suffolk, and acknowledged in writing that he had received full satis-
faction, of the within named Richard Roe, for the injury complained
of, I do hereby order the within recognizance to be discharged.
Dated at Northport, in the town of Huntington, this sixth day of
January, i898.
Abraham Kent, Justice of the Peace.
1. See supra, note, i, p. 10.
11 Volume 5.
COMPROMISE.
BY THOMAS E. O'BRIEN.
I. OFFER TO COMPROMISE BY ALLOWING JUDGMENT, 12.
1. The Offer, 12.
a. y Party, 13.
(1) Generally, 13.
(2) Injustice's Court, 16.
(3) In Appellate Court, 1 7.
(a) On Notice of Appeal, 17.
(b) In Action Pending in Appellate Court, 18.
b. By Agent, 18.
c. By Attorney, 19.
2. The Acceptance, 21.
a. Generally, 21.
b. In Justice 's Court, 23.
c. In Appealed Cases, 23.
3. The Judgment, 23.
a. Generally, 23.
. In Justice 1 s Court, 24.
(i) Upon Acceptance of Offer, 24.
( 2 ) Upon Refusal of Offer or Failure to Accept, 2 5 .
II. OFFER TO BE DEFAULTED, 25.
1. By Party, 25.
2. By Agent or Attorney, 26.
III. COMPROMISE AGREEMENTS, 26.
i. The Agreement, 26.
a. Action upon the Agreement, 27.
3. 7^<? Setting Up the Agreement in Defense, 28.
CROSS-REFERENCES.
For Forms of Compromise of Criminal Actions, see the title COM-
POUNDING OFFENSES, ante, Forms Nos. 6978 to 5980.
I. OFFER TO COMPROMISE BY ALLOWING JUDGMENT.
1. The Offer. 1
1. Offer to Confess Judgment. For forms relating to offers to confess judgments
see the title CONFESSION OF JUDGMENT, post, p. 46 et seq.
12 Volume 5.
5981.
COMPROMISE.
5981.
a. By Party.
(1) GENERALLY.
Form No. 5981 . l
Supreme Court, Albany County.
John Doe, plaintiff,
against
Richard Roe, defendant.
1. Statutory Provisions. This is the
proper form of offer after action is com-
menced. In New York the defendant
may, before trial, serve upon plaintiff's
attorney a written offer to allow judg-
ment to be taken against him for the
sum or property or to the effect therein
specified with costs. If the plaintiff,
within ten days thereafter, serves upon
the defendant's attorney a written no-
tice that he accepts the offer, he may
file the summons, complaint, and offer
with proof of acceptance, and thereupon
the clerk must enter judgment accord-
ingly. If notice of acceptance is not
thus given and the plaintiff fails to ob-
tain a more favorable judgment, he
cannot recover his costs from the time
of the offer, but must pay the costs from
that time. Code Civ. Proc., 738,
as amended Laws (1877), c. 116; Birds.
Rev. Stat. (N. Y. 1896), p. 2198, 3, p.
1780, 32 (applying to justices' courts).
Similar or analogous statutes exist in
the following states:
Arkansas. Sand. & H. Dig. (1894),
5900.
California. Code Civ. Proc. (1897),
997-
Idaho. Rev. Stat. (1887), g 4870.
Indiana. Horner's Stat. (1896),
514.
Iowa. Code (1897), 3819.
Kansas. 2 Gen. Stat. (1897), c. 95,
445-
Kentucky. Bullitt's Civ. Code (1895),
634.
Michigan. How. Anno. Stat. (1882),
7372-
Minnesota. Stat. (1894), 5405,
4976 (in justices' courts).
Missouri. Burns' Anno. Prac. Code
(1896), 565.
Montana. Code Civ. Proc. (1895),
1800.
Nebraska. Comp. Stat. (1897), 6157.
Nevada. Gen. Stat. (1885), 3397-
New Mexico. Laws (1897), c. 73,
118.
North Carolina. Code (1883), g 573.
North Dakota. Rev. Codes (1895),
Ohio. Bates' Anno. Stat. (1897),
5140.
Oklahoma. Stat. (1893), c. 66, 539.
Oregon. Hill's Anno. Laws (1892),
c. 4, 520.
South Carolina. 2 Rev. Stat. (1893),
386.
South Dakota. Comp. Laws Dak.
(1887), 5246.
Utah. Rev. Stat. (1898), 3217.
Wisconsin. Sanb. & B. Anno. Stat.
(1889), 3 2789, 4269.
Wyoming. Rev. Stat. (1887), 2527.
Connecticut. In all actions on con-
tract or for the recovery of money only,
defendant may, before trial, file with
the clerk a written notice, signed by
himself or attorney, directed to the
plaintiff or his attorney, offering to al-
low plaintiff to take judgment for a
sum named in said notice, etc. Gen.
Stat. (1888), 1057-1059; 684 (relat-
ing to justices' courts).
In actions before the superior court,
court of common pleas, or district
court, or any city court, the plaintiff
may, within ten days after being noti-
fied by the defendant of the filing of
such offer, file with the clerk of the
court a written notice, signed by him-
self or his attorney, that he accepts
said offer; and such notice being filed
the court shall render judgment against
the defendant. Conn. Laws (1897), c.
1 80, 3.
Mississippi. Defendant, in any per-
sonal action, except actions for assault
and battery, false imprisonment, libel,
slander, malicious arrest or prosecu-
tion, criminal conversation or seduc-
tion, may offer with his plea or in
writing afterward, before trial, and pay
into court a sum of money by way of
compensation or amends, and may
plead that the sum is sufficient to sat-
isfy the plaintiff in respect to the cause
of action mentioned. If the plaintiff
accept same, judgment shall be entered
i a
Volume 5.
5981.
COMPROMISE.
5981.
The above named defendant Richard Roe 1 hereby offers to allow
judgment to be taken against him and in favor of the above named
plaintiff John Doe in the above action now pending 2 in this court for
the sum of three hundred dollars (and if interest is intended add " with
interest 3 from the first day of July, i897"; or say "for the recovery
of the following described property," describing it; or say "to the
effect," specifying for what the judgment may be taken)* together with
therefor with costs, and if plaintiff fails
so to do, and fails to recover more than
the sum so offered, he shall pay all
costs accruing after such offer. Anno.
Code (1892), 713.
Precedents Indiana. In Harris v.
Dailey, 16 Ind. 184 :
"Samuel F. Dailey \ In the Grant Cir-
v. V cuit Court,
Noah Harris. } Spring Term, iSjS.
The plaintiff in the above entitled
cause will take notice that I hereby offer
to allow judgment to go against me in
said cause for $306.70 and costs. April
, l8_5<?. Noah Harris."
Nebraska. In Ossenkop v. Akeson,
15 Neb. 622 :
"To Peter Akeson: I hereby offer
you judgment against me in the sum
of twenty dollars and costs to this time
in the action now pending between us
before Hon. J. W. Johnson, county
judge of Cass County, Nebraska.
[ William Ossenkop.~\
Delivered to Peter Akeson, June 6th,
William Ossenkop."
Ohio. Notice in writing served on
plaintiff or his attorney by defendant,
to the effect that the defendant does
then offer to confess judgment in the
action for a sum therein named and
costs to that date, should be regarded
as an offer to allow judgment within
the meaning of the Ohio Code. Adams
v. Phifer, 25 Ohio St. 301. The offer
in this case was as follows :
"'Stephen Phifer ~| Madison Common
and Pleas, No. 1720.
Joseph Plowman The plaintiffs are
against > hereby notified that
Eli H. Adams the defendants offer
and to confess judg-
J. C. Davidson. J ment in favor of
the plaintiffs for the sum of three hun-
dred and fifty dollars, and costs of suit
to this date.
Goode & Bowman,
Defendant's Attorneys."
1. To Be Made by All Defendants. The
offer must come from all the defendants
or their common attorney. The plain-
tiff's right is to have judgment on the
submitted offer in the pending action,
and consequently against all whom he
has sued, and unless the offer is com-
mensurate with this right it is unavail-
ing. Williamson v. Lock's Creek Ca-
nal Co., 84 N. Car. 629 ; Binney v. Le
Gal, 19 Barb. (N. Y.) 592; Schneider
v. Jacobi, i Duer (N. Y.) 694.
One partner has no power to make the
offer to the plaintiff to take judgment
against himself and his copartners
without some evidence from which it
is to be inferred that his copartners au-
thorized him to make the offer or as-
sented to it. Binney v. Le Gal, 19
Barb. (N. Y.) 594.
2. While action is pending, only, can the
offer be made. Homer v. Pilkington,
II Ind. 440; Crane v. Hirschfelder, 17
Cal. 582.
3. " With interest " has no significance
where an offer is made for a certain
sum with interest, not specifying the
amount of interest or fixing any date
for its computation. Smith v. Bowes,
ii Daly (N. Y.) 320.
4. Sufficiency of offer should be couched
in clear and specific language, leaving
no reasonable ground for controversy
or misunderstanding respecting the re-
lief proposed by it or the judgment
the party will be entitled to under the
acceptance of it. Bettis v. Goodwill,
32 How. Pr. (N. Y. Supreme Ct.) 137.
Specifying Amount or Relief. Must
be for a sum named and costs; and an
instrument which stated that defendant
did not admit that he was indebted to
the plaintiff, but, for the purpose of
buying his peace and saving further
litigation, would pay a stated sum and
costs if the plaintiff would dismiss the
suit, was not an offer to allow judg-
ment. Quinton v. Van Tuyl, 30 Iowa
557. The amount need not, however,
be specified in the offer. This may be
rendered certain by a reference in the
offer to the complaint. Burnett v.
Westfall, 15 How. Pr. (N. Y. Supreme
Ct.) 420.
Action Relating to Personalty. In.
action for possession of personal prop-
erty, an offer to allow judgment for a
14 Volume 5.
5981.
COMPROMISE.
5981.
costs. 1
Dated the ninth day of February, i898.
Richard Roe, Defendant.
106 State Street, Albany, N. Y. 2
specified sum in damages, but not in-
cluding an offer to allow judgment to
be taken adjudging the title, is not
sufficient. Oleson v. Newell, 12 Minn.
186.
Where an action is brought to re-
cover damages for the conversion of
personal property, it has been held
that defendant cannot force the plain-
tiff to accept the property or pay the
costs on refusal to do so, and even if
the action had been brought to recover
the specified property tendered, the
defendant will have no such right un-
less the offer includes with the pro-
posed delivery of articles tendered a
proposal to pay an amount as damages
for detention not less than that ulti-
mately assessed by the jury. Stephens
v. Koonce, 103 N. Car. 266.
Discharging Mechanics' Lien. An
offer in writing to pay into court the
stated amount in discharge of a me-
chanics' lien must follow strictly the
statute (Birds. Rev. Stat. N. Y. (1896),
p. 1964, $ 49). The omission of the
words " discharge of the lien " has been
held to render the offer ineffectual.
Burton v. Rockwell, 63 Hun (N. Y.)
163, following Hall v. Dennerlein, (C.
PI.) 39 N. Y. St. Rep. 67, questioning,
however, the soundness of the rule.
In action for stale and county taxes,
the offer must specify in what sum
judgment will be allowed for state and
what sum for county taxes. Sacra-
mento County v. Central Pac. R. Co.,
61 Cal. 250.
Must be unconditional and leave no
facts to be ascertained and determined.
An offer containing the statement " this
offer being subject to the covenant for
the stay of proceedings entered into
between the parties hereto " is void.
Pinckney v. Childs, 7 Bosw. N. Y. 662.
In this case the offer was insufficient,
and was as follows, omitting formal
parts:
" Please take notice that the above
named defendants, Henry M. Childs,
Seneca Durand and Anthony Arnoux,
hereby severally withdraw the answers
by them made in the above entitled
cause, copies of which have been here-
tofore served upon you, and the said
defendants hereby offer to allow judg-
ment to be taken against them for the
sum of one thousand nine hundred and
sixty-three dollars and sixty cents, with-
out costs, this offer being subject to
the covenant for a stay of proceed-
ings entered into between the parties
hereto."
But in De Long v. Wilson, 80 Iowa
217, the words "said amount to be a
full settlement of the above action "
were held not to constitute a condition
upon which the offer was made, but
only a legal and logical conclusion of
the acceptance. Quinton v. Van Tuyl,
30 Iowa 554.
Confined to what Claims. Must be
confined to the claims made by the
plaintiff in the suit. Phillips v. Shearer,
56 Iowa 262.
1. With Costa. An offer to allow
judgment to be taken must expressly
state that it may be taken with costs.
Ranney v. Russell, 3 Duer (N. Y.)689;
Harter v. Comstock, n Ind. 525; Quin-
ton v. Van Tuyl, 30 Iowa 557. But an
offer to allow judgment with "accrued
costs " is sufficient. Holland v. Pugh,
16 Ind. 21. And where an offer of
judgment with costs "to date" was
made, it was held that the words " to
date" were mere surplusage. Lynkf.
Weaver, 128 N. Y. 175. In Wisconsin,
however, an offer for a judgment for a
specified sum as damages is sufficient,
although it does not expressly offer
judgment for costs also. Brown v.
Bosworth, 58 Wis. 379. In this case the
offer was annexed loan affidavit by one
of the defendants served upon the
plaintiff within ten days after service
of the summons and complaint upon
the defendants. The affidavit, including
the proper venue, is set out in the re-
ported case, as follows:
(Title of cause.) "The defendants
hereby offer to allow judgment to be
taken against them in the above action
for $99.2.79 in favor of the plaintiff.
February jth, i8&?.
G. W. Cate,
Defendants' Attorney."
2. Must be Signed. The offer without
signature is not sufficient, though in
writing authorizing plaintiff to take
judgment for a specified sum and costs.
Ossenkop v. Akeson, 15 Neb. 622.
15 Volume 5.
5982. COMPROMISE. 5983.
To John Doe, plaintiff.
(Proof of service, ) x
Form No. 5982.*
State of Indiana, ) j h p ^ . c
Posey County. [
John Doe, plaintiff, )
against V Offer to allow judgment.
Richard Roe, defendant. )
The above named defendant Richard Roe, on this twenty-fourth day
of Nmember, i8P7, hereby offers to allow judgment for the sum of
three hundred and fifteen dollars, together with costs to have accrued
and may accrue, to be taken against him the said Richard Roe by him
the said John Doe in the above entitled action now pending in this
court, which said action is based upon a claim of the sum of four
hundred dollars, which the said John Doe, plaintiff, has against said
Richard Roe, defendant, for certain goods, wares and merchandise by
the said John Doe to him the said Richard Roe sold and delivered.
Richard Roe, Defendant.
To John Doe, plaintiff.
(Proof of service.) 1
(2) IN JUSTICE'S COURT.
Form No. 5983.'
(N. Car. Code (1883), 909, No. 43.,
John Doe )
against > Justice's Court.
Richard Roe. )
But it is not required that the offer North Carolina. Code (1883), 573,
shall be acknowledged by the defendant North Dakota. Rev. Codes (1895),
when signed by him personally. That 5640.
it shall be subscribed by him is all that Ohio. Bates' Anno. Stat. (1897),
the code requires. Pfister v. Stumm, 5143.
7 N. Y. Mis. Rep. (Buffalo Super. Ct.) South Carolina. 2 Rev. Stat. (1893),
530, distinguishing Bridenbecker v. 386.
Mason, 16 How. Pr. (N. Y. Supreme South Dakota. Comp. Laws Dak.
Ct.) 203. In the Pfister case the offer (1887), 5247.
of judgment was held sufficient and, Utah. Rev. Stat. (1898), 3217.
omitting formal parts, was as follows: Wyoming. Rev. Stat. (1887),
"The defendant hereby offers to 2530.
allow judgment in this action establish- 1. Proof of Service. For forms of ac-
ing the amount of the plaintiff's lien at knowledgments of or affidavits of serv-
the sum of three hundred dollars and ice consult title SERVICE OF WRITS AND
costs. Jacob Stumm." PAPERS.
In oases of counterclaim, where the 2. Indiana. Homer's Stat. (1896),
plaintiff serves an offer upon defendant 514.
to allow judgment to be taken against See also list of statutes cited supra,
him upon the counterclaim, etc., the note I, p. 13. Consult annotations ap-
forms given above, with slight changes, pended to Form No. 5981, supra, the
will be found sufficient. general form relating to the offer by a
New York. Birds. Rev. Stat. (1896), party to compromise.
p. 2i98,-- 4 (Code Civ. Proc., 739, 3. North Carolina. Code (1883),
as amended Laws (1877), c. 416). 840, rule 12. Similar or analogous i ro
16 Volume =.
5984.
COMPROMISE.
5984.
To John Doe: Take notice that the defendant hereby offers to
allow judgment to be taken against him by the plaintiff in the above
action for the sum of fifty dollars with costs. Dated this tenth day
of January, 1&98. 1
Richard Roe.
(Proof of service^-
(3) IN APPELLATE COURT.
(a) On Notice of Appeal.
Form No. 5984.*
Albany County Court.
John Doe, respondent,
against
Richard Roe, appellant.
To John Doe, respondent (or Jeremiah Mason, attorney for respondent}
herein.
Sir: The appellant hereby offers to allow judgment to be rendered
in the County Court above named against him in this cause, and in favor
visions will be found in the statutes of
the following states:
California. Code Civ. Proc. (1897),
895.
Florida. The defendant may, be-
fore answering, make an offer to allow
judgment to be taken against him for
an amount to be stated in such offer,
with costs. The plaintiff shall there-
upon, and before any proceedings shall
be had in the action, determine whether
he will accept or reject such offer. If
he accept the offer and give notice
thereof to the justice, the justice shall
note the offer and the acceptance there-
of and render judgment accordingly.
Rev. Stat. (1892), 1617.
Idaho. Rev. Stat. (1889), 4731.
Kansas. 2 Gen. Stat. (1897), c. 103,
154-
Montana. Code Civ. Proc. (1895),
1628.
Nebraska. Comp. Stat. (1897),
6527 (before trial).
Nevada. Gen. Stat. (1885), 3576.
New York. Code Civ. Proc., 2892
(Birds. Rev. Stat. (N. Y. 1896), p. 1780,
32).
North Carolina. Code (1883), 840,
rule 16.
North Dakota. Rev. Codes (1895),
6713-
Ohio. Bates' Anno. Stat. (1897),
6581.
5 E. of P.P. 2.
Oklahoma. Stat. (1893), c. 67, 123.
South Carolina. 2 Rev. Stat. (1893),
88, subs. 15.
South Dakota. Comp. Laws Dak.
(1887), 6108.
Utah. Rev. Stat. (1898), 3731.
Vermont. Stat. (1894), 1690.
Wisconsin. Sand. & B. Anno. Stat.
(1889), 3627.
Wyoming. Rev. Stat. (1887), 3479.
1. Proof of service, see supra, note i,
p. 16.
2. Upon appeal from a judgment of a
justice of the peace, where judgment is
for a sum of money only, either party
may, within fifteen days after service
of notice of appeal, serve upon the ad-
verse party or upon his attorney a
written offer to allow judgment to be
rendered in the appellate court in favor
of either party for a specified sum. If
the party, within ten days after service
of the offer upon him, serves upon the
party making same, or upon his attor-
ney, written notice that he accepts the
offer, he must file it, with an affidavit
of service of the notice of acceptance,
with the clerk of the appellate court,
who thereupon must enter judgment
accordingly. N. Y. Code Civ. Proc.,
3070, as amended Laws (1885), c. 522;
Laws (1895), c. 356; Birds. Rev. Stat.
N. Y. (1896), p. 1815, 214.
17
Volume 5.
5985.
COMPROMISE.
5986.
of the respondent in the above action, for the sum of sixty-five dollars.
Dated the ninth day of February, iS98.
Richard Roe, Appellant. *
{Proof of service.)*
(<) In Action Pending in Appellate Court.
Form No. 5985.*
( Title and address as in Form No. 6984-)
The above named appellant, Richard Roe, hereby offers to allow
judgment to be taken against him by the above named respondent,
John Doe, in this cause now pending in this court, for the sum of sixty-
five dollars (or for the recovery of the following described property,
describing it), with (or without) costs. 4
Dated the third fay of February, i898.
Richard Roe, Appellant.
(Proof of service.}*
b. By Agent.
Form No. 5986.*
(Precedent in Carpenter v. Kent, II Ohio St. 554. )*
1. By Attorney. The offer to allow
judgment, under section 3070 of the
New York Code of Civil Procedure, may
be made by the attorney of the party.
Sherman v. Shisler, 6 N. Y. Misc. Rep.
(Buffalo Super. Ct.) 203.
The authority of the attorney to ap-
pear in the defendant's behalf empow-
ers him to make an offer of judgment.
All the incidents to the authority at-
tach thereto, and among others to bind
the principal by any proceedings which
the principal might take therein, and it
is not necessary that, in addition to his
swearing to his authority to appear
generally, he should further swear to
his authority to make the offer of
judgment. Fowler v. Haynes, 91 N.
Y.35I-
2. Proof of service, see supra, note i,
p. 16.
3. After action is deemed at issue in ap-
pellate court, and before the trial, either
party may at any time serve upon the
adverse party a written offer to allow
judgment to be taken against him for
the sum or property or to the effect
therein specified, with or without costs.
If the party receiving the offer within
ten days thereafter serves upon the ad-
verse party notice that he accepts it, he
may file it with proof of acceptance and
thereupon theclerk mustenter judgment
accordingly. N. Y. Code Civ. Proc.,
3072 (Birds. Rev. Stat. N. Y. (1896), p.
1815, 216). Consult annotations to
Form No. 5984, supra.
4. Costs. An offer under section 3072
should state whether the judgment is
offered with or without costs, while an
offer served under section 3070 is to be
silent in respect to costs. Zoller v.
Smith, 45 Hun (N. Y.) 321.
5. Proof of service, see supra, note i,
p. 1 6.
6. Ohio. Bates' Anno. Stat. (1897),
5140, 6581, 6705. See also list of
statutes cited supra, note i, p. 13.
Notice in writing served on plaintiff
by defendant, stating that the latter
offers to confess judgment for a sum
therein named and costs to date, was
regarded as an offer to allow judgment
within the meaning of the Ohio Stat.,
5140. Adams v. Phifer, 25 Ohio St. 301.
Must be made in a separate writing and
served as prescribed by law. It should
not be made a part of the answer. Arm-
strong v. Spears, 18 Ohio St. 373; Tipton
v. Tipton, 49 Ohio St. 364.
7. This writing was held to be in its
terms a clear and explicit offer to the
plaintiffs to suffer them to take a judg-
ment against the defendants in the
action then commenced for the sum of
fifty dollars, and that the offer could
18
Volume 5.
5987. COMPROMISE. 5987.
[The State of Ohio, \ Before Abraham Kent, Justice of the Peace for
Monroe County, ss. ) Township in said county.] 1
James Kent and Win. T. Kent, as admin- "
istrators of the estate of William Kent,
deceased,
Civil Action,
v.
Reason Carpenter, Samuel Carpenter and
Daniel Breeding.
The defendants hereby tender to the plaintiffs a judgment in favor
of said plaintiffs against said defendants of fifty dollars, with the costs
that have accrued up to this date. March 2, iS67.
Reason Carpenter?
Samuel Carpenter.
Daniel Breeding.
By Jas. M. Stout, their Agent.
[(Proof of service. )] 3
e. By Attorney.
Form No. 5987.*
Supreme Court, Ontario County.
William B. Burnett \
against
George D. Westfall. }
Sir: Take notice that the defendant hereby offers to allow the
plaintiff in this action to take judgment against him for the sum of
two hundred dollars, being the amount claimed in the summons and
complaint herein, to wit, the sum of four hundred and fifty dollars,
less the amount of the two notes of Joseph Westfall set up in the third
and fourth defenses in the answer, the said two notes amounting to
two hundred dollars, and for costs and disbursements. 5
Yours, etc.,
Corn-well, Welling <5r- Arnold, Defendant's Attorneys, 6
106 State Street, Geneva, N. Y. 7
not have been made more obligatory it did not state that it was made for a
upon the defendants. Carpenter v. specific sum. This, however, seems to
Kent, ii Ohio St. 560. be required under the provisions of the
1. Words within [ ] are not found in present section of the code (Code Civ.
the reported case. Proc., 738).
2. One of two defendants may make this 6. Signature of Attorney. Although
offer. New York, etc., R. Co. v. Clark, the statute provides that the offer when
54 Ohio St. 509. made by an attorney shall be sub-
3. Proof of service, see supra, note i, scribed by him, it is not essential that
p. 16. the papers have the genuine signature
4. New York. Birds. Rev. Stat. of the attorney. His name subscribed
(1896), p. 2198, 3; Code Civ. Proc., in any manner, either written or printed,
738, as amended Laws (1887), c. 416. is sufficient, inasmuch as it is treated
See also list of statutes cited supra, by the attorney as subscribed by him.
note i, p. 13. Smith v. Kerr, 49 Hun ( N. Y.) 31;
5. Stating Specific Sum. This is an Barnard v. Heydrick, 49 Barb. ( N. Y.)
offer based upon the facts in the case 62; New York v. Eisler, 2 Code Civ.
of Burnett v. Westfall, 15 How. Pr. Proc. Rep. (N. Y. C. PI.) 125.
(N. Y. Suprem: Ct.)42o. In that case 7. Office Address. Attorney must add
the offer was held sufficient, although to his signature his office address,
19 Volume 5.
5988.
COMPROMISE.
5988.
To S. Baldwin, Esq., Plaintiff's Attorney.
(Affidavit of attorneys' authority. )*
(Proof of service^
Form No. 5 9 8 8 . 3
(Precedent in De Long v. Wilson, 80 Iowa 217.)
District Court in and for Mahaska county, state of Iowa.
E. F. De Long )
vs. \April Term, iS90.
E. M. Wilson. )
To E. F. De Long, or Bolton 6 McCoy, his attorneys of record:
The above named defendant, E. M. Wilson, hereby offers to allow
judgment to be taken against him in the above entitled cause for the
sum of twenty-five dollars, with costs to date; said amount to be a
full settlement of the above cause. 4 This is an offer of compromise
under section 2900 of the Code of Iowa.
E. M. Wilson,
J. F. 6- W. R. Lacey,
W. G. Jones,
His Attorneys.
[(Proof of service. )] 5
specifying a place within the state where
there is a post-office. If in a city,
he must add the street and the street
number, if any, or any suitable desig-
nation of a particular locality. N. Y.
Code Civ. Proc., 421 (Birds. Rev. Stat.
(1896), p. 2269, 3); Code Civ. Proc.,
417 (Birds. Rev. Stat. (1896), p. 12, 10).
1. Attorney's Affidavit of Authority.
Unless the offer made as prescribed by
law is subscribed by the party making
it, his attorney must subscribe it and
annex thereto his affidavit to the effect
that he is duly authorized to make it
in behalf of the party. N. Y. Code
Civ. Proc., 740. McFarren v. St.
John, 14 Hun (N. Y.) 387; Riggs v.
Waydell, 17 Hun (N. Y.) 515, affirmed
in Riggs v. Waydell, 78 N. Y. 586.
The following may be used as the
form for such an affidavit:
''"Ontario County, ss.
Jeremiah Mason, being first duly
sworn, on oath says, that he is the duly
authorized attorney for the said Richard
Roe, defendant in the above named
proceeding, and that he has been
authorized by the said Richard Roe to
make the above offer of judgment in
his behalf.
Jeremiah Mason.
Sworn to before me this ninth day of
February, lS<?S.
(SEAL) Norton Porter,
Notary Public."
In Riggs v. Waydell, 17 Hun (N. Y.)
515, the offer to allow judgment, omit-
ting the formal parts, was as follows:
"The defendants in this action hereby
offer to allow judgment to be taken
therein against them for the sum of
$800.00 and interest thereon from April
26, 1877, with costs." The defendants'
attorney served the offer, which was
signed by himself but was not accom-
panied by an affidavit showing his
authority to make it. Plaintiff served
notice declining to accept the offer.
On trial, recovery was had for less than
the amount named in the offer. Defend-
ant was not allowed to amend the offer
by annexing the proper affidavit of
authority required by N. Y. Code Civ.
Proc., 740.
2. Proof of Service. * For form of
acknowledgments of or affidavits of
service consult the title SERVICE OF
WRITS AND PAPERS.
3. Iowa. Code (1897), 3819. See
also list of statutes cited supra, note
i. p. 13.
4. The words " said amount to be a full
settlement of the above cause," in this
offer, were held not to constitute a
condition upon which the offer was
made, but only a legal and logical con-
sequence of the acceptance, distinguish-
ing Quinton v. Van Tuyl, 30 Iowa 554.
5. Proof of service, see supra, note i,
p. 16.
20 Volume 5.
5989.
COMPROMISE.
5991.
Form No. 5989.'
CQUI%
term,
(Precedent in Wordin v. Bemis, 33 Conn. 216.)
Isaac H. Wordin \
v- [
Stephen C. Bemis. )
To the plaintiff and to Messrs. Treat & Blake, his attorneys:
The defendants hereby offer to allow you to take judgment in this
action for the sum of $138, being a balance of freight after payment
of $80, to wit, $134.70, with interest on said sum since November 1st,
iS62, and a small excess allowed for possible difference in computing;
interest with costs.
By F. Chamberlain, attorney for defendants.
Form No. 5990.*
(Precedent in Rose v. Peck, 18 Neb. 529.)*
Amos Peck
v.
Peter W. Rose.
Now comes the defendant, Peter W. Rose, by his attorneys, Brown <5r
Ryan Bros., and offers to allow judgment to be taken against him for
$5.00 and costs in this action, wherein Amos Peck is plaintiff and Peter
W. Rose is defendant, now pending in the district court of Lancaster
county, Nebraska.
Brown 6r Ryan Bros., Attys. for Deft.
(Indorsement. ) 4
(Proof of service.}*
2. The Acceptance.
a. Generally.
Form No. 5991.'
(Title of court and cause as in Form No. 5981.)
To Richard Roe (or Jeremiah Mason, his attorney):
John Doe, the above named plaintiff, hereby notifies you that Re
accepts the offer of Richard Roe, the above named defendant, to allow
1. Connecticut. Gen. Stat. (1888), 4. Indorsement. The offer to allow
1057-1059. See also list of statutes
cited supra, note I, p. 13.
2. Nebraska. Comp. Stat. (1897),
6527. See also list of statutes cited
supra, note i, p. 13.
3. Necessity of Notice to Plaintiff. In
this case it was held that the offer to
allow judgment was unavailing to
throw upon plaintiff the costs made
after the filing of the offer, for the
reason that the offer, though in writing
and filed in the office of the clerk, was
not served upon the plaintiff or his at-
torney, nor was it made in open court
while plaintiff was present.
judgment set out in the text was in-
dorsed as follows : " Amos Peck v.
Peter W. Rose. Offer to confess judg-
ment. Clerk's Office, district court.
Filed March 2, l8St. E. R. Sizer, Clk.
D. C."
5. Proof of service, see supra, note I,
p. 16.
6. New York. Code Civ. Proc. , 738,
as amended Laws (1877), c. 416 (Birds.
Rev. Stat. (1896), p. 2198, 3). See
also list of statutes cited supra, note i,
p. 13, for similar statutory provi-
sions.
21 Volume 5.
5991.
COMPROMISE.
5991.
judgment to be taken against him in the above entitled action for
[the sum of three hundred and fifteen dollars], 1 with costs that have
accrued and may accrue herein.
Dated the twenty-seventh day of Nwember, i&97.
John Doe (or Oliver Ellsworth, Attorney for Plaintiff,
1006 State Street, Albany, JV. F.)
(Affidavit of attorney's authority^
(Proof of service^
1. Or, instead of the words within [ ],
specify the particular judgment or re-
lief offered to be allowed, as shown in
the offer of the defendant.
2. Affidavit of Attorney's Authority.
In New York, when the acceptance is
subscribed by the attorney of the party,
he must annex thereto his affidavit to the
effect that he is duly authorized to make
it in behalf of the party. N. Y. Code
Civ. Proc., 740 (Birds. Rev Stat.
N. Y. (1896), p. 2198, 5). See supra,
note i, p. 20. The following form
of affidavit is sufficient under this sec-
tion:
''''Albany County, ss.
Jeremiah Mason, being duly sworn on
oath, says that he is the attorney for
the above named plaintiff, John Doe, and
that he is duly authorized by said plain-
tiff to accept the above offer of judg-
ment.
Jeremiah Mason.
Subscribed and sworn to before me
this fourth day of January, iStyS.
(SEAL) Norton Porter,
Notary Public."
3. Pro'of of Service. See supra, note
i, p.'ib.
Plaintiffs affidavit that notice of ac-
ceptance was delivered in the time
limited by the statute, to be filed with
the offer, as provided by Neb. Comp.
Stat. (1897), 6157, may be in the fol-
lowing form:
"JohnDoe, plaintiff,
against
Richard Roe, defendant.
State of Nebraska, \
County of Co/fax. \ ss '
John Doe, being duly sworn, upon oath
deposes and says that he is the plaintiff
in the above entitled action; that on
the tenth day of January, A. D. 1897, at
Schuyler, in said county, an offer to
allow judgment made by the defendant
and hereto annexed was served upon
him, and that within five days there-
after, to wit, on the fourteenth day of
January, A. D. 1897, he served upon
Daniel Webster, defendant's attorney, at
his office in Schuyler aforesaid, a notice
that he, the plaintiff, accepted the said
offer; and that a true copy of said notice
is hereto annexed.
John Doe.
Subscribed and sworn to before me
this fourteenth day of January, A. D.
1897.
(SEAL) Norton Porter,
Notary Public."
Under N. Y. Code Civ. Proc., 738,
as amended Laws (1877), c. 416 (Birds.
Rev. Stat. (1896), p. 2198, 3), the fol-
lowing affidavit is sufficient:
"Supreme Court, Albany County.
John Doe, plaintiff,
against
Richard Roe, defendant.
Albany County, ss.
Jeremiah Mason, attorney iorjohn Doe,
the above named plaintiff, being duly
sworn, upon oath deposes and says that
on the sixth day of February, A. D. 1897,
at Albany, in said county, an offer to
allow judgment, made by the defend-
ant, and hereto annexed, was served
upon him, and that within ten days
thereafter (or within the time prescribed
by the statute), to wit: on the fourteenth
day of February, A. D. 1897, he served
upon Daniel Webster, defendant's attor-
ney, at his office in Albany aforesaid, a
notice that the plaintiff accepted the said
offer, and that the above is a true copy
of said notice.
Jeremiah Mason.
Subscribed and sworn to before me
this fourteenth day of February, A. D.
1897.
(SEAL) Norton Porter,
Notary Public."
For similar provisions in other juris-
dictions see list of statutes cited supra,
note i, p. 13.
22
Volume 5.
5992. COMPROMISE. 5994.
b. In Justice's Court.
Form No. 5992.'
(N. Car. Code (1883), 909, No. 44.)
( Title of court and cause as in Form No. 5983.)
To Richard Roe : Take notice that the plaintiff hereby accepts
the offer to allow the plaintiff to take judgment in the above action
for the sum of fifty dollars with costs, and the justice will enter up
judgment accordingly. Dated this eleventh day of January, iS98.
John Doe.
(Proof of service '.) 2
c. In Appealed Cases.
Form No. 5993.*
( Title of court and cause as in Form No. 598 4. )
To Richard Roe (or Daniel Webster, his attorney):
John Doe, the above named respondent, hereby notifies you that he
accepts the offer of Richard Roe, the above named appellant, to allow
judgment to be rendered in the county court above named against
him in the above entitled action, for the sum of sixty-five dollars.
' Dated \hzfourth day of February, i89<?.
John Doe, Respondent
(or Jeremiah Mason, Attorney for Respondent,
1001 State Street,
Albany, New York)*
(Proof of service^
3. The Judgment.
a. Generally.
Form No. 5994 .*
Supreme Court, Albany County.
John Doe, plaintiff,
against
Richard Roe, defendant. ,
John Doe, the plaintiff above named, having filed the summons
and complaint in the above entitled cause, together with the offer of
1. North Carolina. Code (1883), 5. New York. Code Civ. Proc.,
840 rule 12 See list of statutes cited 738, as amended Laws (1877), c. 416;
supra note I, p. 13. Code Civ. Proc., 739. as amended
2. Proof of Service. Seesufra, note i, Laws (1877), c. 416; Birds. Rev. Stat.
p. 13. (1896), p. 2198, 3 and 4. See also
3. 'New York. Code Civ. Proc., list of statutes cited supra, note i,
3070, as amended Laws (1885), c. 522; p. 13.
Laws (1895), c. 356; Birds. Rev. Stat. In appealed cases in New York, under
(1896), p. 1815, 214. Consult anno- Code Civ. Proc., 3070, as amended
tation'to Forms Nos. 5984105985, supra. Laws (1885), c. 522, Laws (1895), c. 356
4. By Attorney. See supra, note i, (Birds. Rev. Stat. (1896), p. 1815, 124),
p. jS. the judgment to be entered by the clerk
23 Volume 5.
5995. COMPROMISE. 5995.
the above named defendant Richard Roe in writing, to allow the said
plaintiff to allow judgment against him for the sum of seven hundred
and fifty dollars (or specifying other relief, as the case may be), with the
proof of acceptance of said offer in writing; therefore, on motion of
Jeremiah Mason, attorney for plaintiff aforesaid, it is considered and
adjudged that the said plaintiff do have and recover against the said
defendant the sum of seven hundred and fifty dollars damages afore-
said (or specifying other relief, as the case may be), with his costs
expended by him in this cause, taxed at eight dollars, amounting in
the whole to seven hundred and fifty-eight dollars. Dated this fourth
day of January, A. D. iS98.
Calvin Clark, Clerk of Albany County.
b. In Justice's Court.
(1) UPON ACCEPTANCE OF OFFER.
Form No. 5995.'
(N. Car. Code (1883), 909, No. 45.)
John Doe )
against > Justice's Court.
Richard Roe. )
(The justice will state all the proceedings in the action from the issuing
of the summons down to the appearance of the parties and the complaint
of the plaintiff, and then proceed as follows:} Whereupon the said
defendant, before answering said complaint, made and served an
offer in writing to allow the plaintiff to take judgment against him
for the sum of fifty dollars with costs;* and the said plaintiff there-
upon accepted such offer and gave notice thereof to the defendant
in writing, said offer and acceptance thereof being filed.
Now, therefore, judgment is accordingly rendered in favor of the
plaintiff and against the defendant for the sum of fifty dollars damages
and the further sum of one dollar costs.
Dated this eleventh day of January, A. D. iS98. 2
[Abraham Kent, Justice of the Peace.]
where the party, within ten days after in this court for the sum of one hundred
service of the offer, serves upon the and fifty dollars having been duly
party making the same a written notice made by the aforesaid respondent, and
that he accepts the offer, and files it the said offer having been duly ac-
with an affidavit of service of the notice cepted by the aforesaid appellant, and
of acceptance, may be in the following the same having been filed in the office
form: of the clerk of said county of Albany,
(Title of court and cause) together with an affidavit of the service
" The above entitled action comes to of notice of said acceptance, wherefore,
this court on appeal taken from a judg- on motion of Daniel Webster, attorney
ment rendered by Abraham Kent, a for appellant aforesaid, it is considered
justice of the peace within and for the that the said respondent John Doe have
county of Albany aforesaid, in favor of and recover against the said Richard
the above named respondent John Doe Roe the sum or one hundred and fifty
and against the above named appellant dollars damages aforesaid " (concluding
Richard Roe, on the tenth day of De- as in Form No. 5994).
cember, A. D. 1897, for the sum of two 1. North Carolina. Code (1883),
hundred dollars damages and his costs 840, rule 12. See list of statutes cited
by him expended, and an offer in supra, note I, p. 13.
writing to allow judgment to be taken 2. The words and figures enclosed by
24 Volume 5.
5996. COMPROMISE. 5997.
(2) UPON REFUSAL OF OFFER OR FAILURE TO ACCEPT.
Form No. 5996.'
(N. Car. Code (1883), 909, No. 45.)
[(Commencing as in Form No. 5995, and continuing down /0*)] 2 and
the said plaintiff having refused to accept such offer, the defendant
answered the complaint by denying, etc. (State the defense of the
defendant down to the judgment, which, in case the plaintiff fails to recover
more than the sum mentioned in the offer, should be entered 'thus .-) After
hearing the proofs and allegations of the respective parties, I adjudge
that the plaintiff do recover the sum of fifty dollars and the further
sum of one dollar costs.
I further adjudge that the defendant do recover of the plaintiff
the sum of two dollars and seventy-five cents costs accruing in the
action subsequent to the offer of the defendant referred to.
Dated this eleventh day of January, A. D. i898. 2
[Abraham Kent, Justice of the Peace.]
II. OFFER TO BE DEFAULTED.
1. By Party.
Form No. 5997.*
, Supreme Judicial Court.
Penobscot, ss. Term, i897.
John Doe }
against > Offer to be defaulted.
' Richard Roe. )
And now the said Richard Roe, defendant in the above entitled
action, on the first day of the said term of said court comes and offers
[ ] will not be found in the statute, but in an action at law or suit in equity
have been added to render the form wherein damages only are sought to be
complete. recovered, offers in court and consents
1. North Carolina. Code (1883), in writing to be defaulted, and the
840, rule 12. See list of statutes cited judgment shall be rendered against
supra, note i, p. 13. him as damages for a sum therein
2. The words and figures enclosed by specified, the same shall be entered of
[ ] will not be found in the statute, but record, together with the time when it
have been added to render the form was made, and the plaintiff may, at any
complete. time within ten days after he has re-
3. Maine. In any personal action, ceived notice of such offer and consent,
defendant may, in writing entered of accept the offer, and the court shall ren-
record with its date, offer to be de- der judgment accordingly, with costs
faulted fora specified sum. If accepted, to the date of the notice. If, after such
interest may be added from that date notice, the court for good cause grants
to the date of judgment. If the plain- the plaintiff a further time to elect, he
tiff does not accept the offer, and fails may signify his acceptance within the
to recover a sum as due at the time of time allowed and the judgment will be
the offer greater than the sum offered, rendered as if the acceptance had been
he recovers such costs only as accrued within ten days. Pub. Stat. (1882),
before the offer, and the defendant re- c. 167, 65.
covers costs accrued after that time. If the plaintiff does not elect to ac-
Rev. Stat. (1883), c. 82. 25. cept such offer and does not recover a
Massachusetts. When a defendant, greater sum than the sum offered, not
25 Volume 5.
5998. COMPROMISE. 5999.
to be defaulted in the above entitled action for the sum of fifty dol-
lars and costs of court, to be taxed by the court according to law. 1
Dated \hzfourth day of January, iS97.
Richard Roe.
2. By Agent or Attorney.
Form No. 5 9 9 8 . 2
(Precedent in Jackson v. Hampden, 20 Me. 37.)
Penobscot s< Supreme Judicial Court,
^' SS ' October Term, i836.
Leonard Jackson
v.
Inhabitants of Hampden.
And now the said inhabitants of Hampden on the first day of the
term of the said court, by their agent, offer to be defaulted in said
action for the sum of ten dollars debt or damage and costs of court,
taxed by the court according to law.
Hannibal Hamlin,
Agent and attorney for the town of Hampden.
III. COMPROMISE AGREEMENTS.
1. The Agreement. 3
Form No. 5999.
(Precedent in Young v. Pickens, 45 Miss. 555.)
Pickens 6 Green }
v- \
F. F. Chalmers. )
By way of compromise of the above stated suit, pending in the
Circuit Court of Pontotoc county, it is hereby agreed between the
including in terest on the sum recovered agreement for compromise, such agree-
and damages from the date of the offer, ments being ordinary contracts or
the defendant shall have judgment for stipulations between the parties or their
his costs after said date. The plaintiff, respective attorneys. In addition to
if he recovers damages, shall be allowed the precedents above given, see also
his costs only to the date of the offer, precedents of compromise agreements
Mass. Pub. Stat. (1882), c. 167, 66. in Mullen v. Morris, 43 Neb. 596; Row-
1. An offer in writing by a defendant land v. Thompson, 73 N. Car. 510.
in an action pending in court " to be Two Suits Involved in One Compromise
defaulted for the sum of seventy dollars Agreement. In Bonney v. Morrill, 57
damages in said action," is a compli- Me. 369, the negotiations concerning a
ance with the requirements of section compromise of two actions resulted in
22, chapter 115, of the Maine Revised the drawing and signing and placing
Statutes. Gowdy z/. Farrow, 39 Me. 474. on file an agreement of the following
2. Maine. Rev. Stat. (1883), c. 82, tenor, omitting the detailed description
25. of the land, to wit :
Massachusetts. Pub. Stat. (1882), c. " S. J. Court, Ken. County, Nov.
167, g 65, 66. Term, i8<V. William B. Bonney v.
Consult annotations to Form No. 5997, Samuel Morrill. Samuel Morrill et al.
supra. v. William B. Bonney et al.
3. There is no particular technicality In the above actions it is agreed by
to be observed in the drawing of an the parties that the defendant in the
26 Volume 5.
6000. COMPROMISE. 6001.
said parties, that so much of the claim sued on shall be abated by
plaintiffs as will reduce the sum to $1,250, and that defendant will
withdraw his plea at the present term of the court, and suffer plain-
tiffs to take judgment, nil dicet, for the above sum, with stay of
execution six months.
Given at Pontotoc, this 10th day of April, A. D. i867.
F. F. Chalmers,
Israel Pickens, surviving partner
Pickens <5r Green.
Form No. 6000.
(Precedent in Phillips v. Pullen, 45 N. J. Eq. 831.)
New Jersey Supreme Court,
Mercer County Circuit.
Ralph L. Pullen }
v. > In Case.
George E. Phillips. )
The said cause having been settled between the parties upon the
terms that the said defendant is to pay the plaintiff or his attorney
the sum of seven thousand and five hundred dollars in full satisfaction
of all damages under said cause; it is therefore agreed by the
respective counsel of the said parties, that the payment of the said
sum shall be made within two weeks from the date hereof, and
upon such payment the said plaintiff shall execute a release to the
defendant in full for the damages claimed in the said action.
Dated Trenton, N. J., Jariy 20th, iB86.
G. D. IV. Vroom, Att'y for Defendant,
Geo. O. Vanderbilt, Att'y for Plaintiff.
2. Action upon the Agreement.
Form No. 6001 .'
(Conn. Prac. Act, p. 61, Form No. 86.)*
To the Sheriff of the county of Hartford or either of the constables.
of the town of Hartford in said county Greeting:
By authority of the state of Connecticut you are hereby commanded
action Bonney v. Morrill shall be de- 2. Complaint. For the formal parts
faulted and judgment entered for the of complaints in other jurisdictions
plaintiff for so much of the land de- consult the title COMPLAINTS, vol. 4,
clared for in the plaintiff's writ as lies p. 1019.
easterly of a line (specifically described). For petition in an action upon a com-
And said Bouncy is to have judgment promise agreement see Mullen v.
for his legal costs. And it is further Morris, 43 Neb. 596. For the formal
agreed, that in the action Morrill et al. parts of petitions, generally, consult
v. Bonney et al. the plaintiffs shall be- the title COMPLAINTS, vol. 4, p. 1019.
come nonsuit, the defendants recover For declaration in an action upon a
their legal costs, and the executions for compromise agreement see Grandin v.
costs in both actions shall be stayed Grandin, 49 N. J. L. 509. For the formal
until the next term of this court." parts of declarations, generally, con-
1. For another complaint on a com- suit the title DECLARATIONS.
promise agreement see the title COM- For special count in a declaration in
PLAINTS, vol. 4, Form No. 5914. an action upon a compromise agree-
27 Volume 5.
6002. COMPROMISE. 6002.
to attach, to the value of one thousand dollars, the goods or estate of
Richard Roe of Windsor in said county, and him summon to appear
before the Court of Common Pleas to be held at Hartford in and for
the county of Hartford on the first Monday of February, i880, then
and there to answer John Doe, of said Hartford, in a civil action,
wherein plaintiff complains and says:
1. On May 15th, iS79, an action was pending in this court between
the parties to this action, brought by the plaintiff to recover from
the defendant a book account of 500, which the plaintiff claimed to
be justly due, 1 but which the defendant disputed. 2
2. On said day, in consideration that the plaintiff promise to dis-
continue his said action forthwith, if the defendant would on June
19th, i87#, pay 800 in satisfaction of said disputed claim, the
defendant promised to pay the plaintiff said sum on said last men-
tioned day.
3. The plaintiff accordingly did discontinue said action. 3
4. Said sum has not been paid.
The plaintiff claims 325 damages.
[Samuel Short of Haddam is recognized in $ to prosecute,
etc.]
Of this writ with your doings herein make due return.
Dated at Hartford this third fay of January, i&80.
3. The Setting Up the Agreement in Defense.
Form No. 6002.
(Conn. Prac. Act, p. 207, Form No. 374.) 4
John Doe } Court of Common Pleas.
vs. Hartford County.
Richard Roe. ) February Term, iB80.
i. Before this action, the plaintiff having demanded said sum (or
said goods, or otherwise) from the defendant, the defendant refused
.ment see Frank v. Heaton, 56 111. App. herein for the sum of $500 on a boo^k
227. account, which said plaintiff claimed to
For bill in equity praying for the rati- be justly due but whichsaid defendant
fication and approval of a compromise disputed," or as the case may be.
agreement see Caldwell v. Brown, 66 3. That the litigation was discontinued
Md. 295. For the formal parts of bills according to the compromise must be
in equity, generally, consult the title alleged. Dolcher v. Fry, 37 Barb. (N.
BILLS IN EQUITY. Y.) 152.
1. A shadow of claim on the part of the 4. Answer. For the formal parts of
plaintiff should be averred. Dolcher v. answers in other jurisdictions consult
Fry, 37 Barb. (N. Y.) 152. But the the title ANSWERS IN CODE PLEADING,
complaint need not allege that the plain- vol. i, p. jggefsey.
tiff's claim was a valid one. Palmer Fleas. For the formal parts of pleas,
v. North, 35 Barb. (N. Y.) 282; Moore generally, consult the title PLEAS.
v. Powell, i Disney (Ohio) 144. Accord and Satisfaction. For forms
2. On Compromise of Claim Not Sued On. of pleas and other answers setting
Instead of paragraph i in text, insert: up a similar defense consult the title
"On May i^th, 1879, there were pending ACCORD AND SATISFACTION, vol. I, p.
between the parties to this action arbi- 181 et seq.
tration proceedings upon a claim of the In Dabney v. McFarlin, (Tex. Civ.
plaintiff herein against the defendant App. 1896) 34 S. W. Rep. 142, to the
28 Volume 5.
6002.
CONCEALED WEAPONS.
6002.
to pay the same because (Here state facts showing the claim to have
been a doubtful one).
2. The parties thereupon agreed to compromise said claim, and
that the defendant should pay and the plaintiff accept $50 in satis-
faction thereof.
. 3. On July 1st, 1 879, defendant so paid and the plaintiff so accepted
said sum.
And therefore he prays judgment.
By Jeremiah Mason, his attorney.
petition filed in the county court of
Hardiman county by R. L. Dabney
against J. L. McFarlin, G. S. White and
William F. Brice, to recover judgment
on a writ of error bond, defendant
pleaded as follows, omitting the formal
parts:
"That in consideration of his deliv-
ering immediate possession of the land
and premises to plaintiff, and renting
the same back for one year at a stipu-
lated price, and waiving citation and
entering his appearance in the suit to
be filed on the t-wo $1,833.60 notes, for
foreclosure of the vendor's lien on the
land, and in not resisting the claim,
but allowing judgment to go by default,
and allowing foreclosure and sale, and
agreeing that he would not bid at the
sale against plaintiff, but would allow
plaintiff's attorney to bid in the land,
he, the said Lewis M. Dabney, as agent
of R. L. Dabney, with authority so to
do, agreed to cancel and release the
judgment to be obtained on the two
principal notes, as well as the judgment
and bonds sued on in this case; and
that he, McFarlin, did and performed,
fully, and in good faith, all that he had
agreed to do as aforesaid; and that,
therefore, he and his sureties on said
bonds are discharged from all liability
thereon."
It was held that demurrer to this
answer, because it failed to show con-
siderations, was correctly overruled and
that the release of the judgment on
both claims was, under the evidence,
clearly within the scope of the son's
apparent authority.
To avoid a settlement pleaded by de-
fendant to a petition, claiming a bal-
ance on contract for the sale of cattle,
for which a note was given, the plaintiff
must allege mutual mistake or fraud
in settlement. Williams v. Dean, (Tex.
Civ. App. 1897) 38 S. W. Rep. 1024.
CONCEALED WEAPONS.
Ste the title CARRYING WEAPONS, vol. 4, p. 351.
29 Volume 5.
CONCEALMENT OF BIRTH OR DEATH.
BY MEL EMERSON PETERS.
I. OF A CHILD GENERALLY, 30.
II. OF A BASTARD CHILD, 31.
1. Generally, 31.
2. Alleging Manner of Concealment, 33.
3. For Being Delivered in Secret, 35.
III. AIDING, ABETTING AND ASSISTING, 35.
CROSS-REFERENCES.
For matters of Procedure, see the title CONCEALMENT OF
BIRTH OR DEATH, 4 ENCYCLOPEDIA OF PLEADING AND
PRACTICE, p. 624.
For matters of Law and Evidence, see the title CONCEALMENT OF
BIRTH OR DEATH, 6 AMERICAN AND ENGLISH ENCYCLO-
PAEDIA OF LAW (zd ed.), p. 424.
I. OF A CHILD GENERALLY.
Form No. 6003.'
(Precedent in State v. Stewart, 93 N. Car. 540.)*
State of North Carolina, \ Superior Court,
Burke County. j" Spring Term, iS85.
The jurors for the State, upon their oath, present that Laura
Stewart, late of the county of Burke, on the first day of March, A. D.
i885, with force and arms at and in the county aforesaid, unlawfully
and wilfully did endeavor to conceal the birth of a new-born male
child, not yet named, of her, the said Laura Stewart, by then and
1. North Carolina. Code (1883), ment was found was so vague and
1004. See also the following statutes indefinite in its terms as not to create a
of similar tenor, to wit: criminal offense, and, second, that the
Minnesota. Stat. (1894), 6548. indictment itself failed to set out and
Missouri. Rev. Stat. (1889), 3479. charge an indictable offense; but it was
New York. Pen. Code, 296, held that a refusal to sustain this
Birds. Rev. Stat. (1896), 483. motion, and a motion in arrest of judg-
2. Upon her arraignment the defend- ment for the same reason, was no
ant moved to quash this indictment, error. The court said: "The statute
drawn under N. Car. Code (1883), constitutes the secret burying or other
1004, upon two grounds: First, that secret disposal of a dead child, born
the enactment upon which the indict- alive, a misdemeanor; and also the
30 Volume 5.
6004. CONCEALMENT OF BIRTH OR DEATH. 6004.
there secretly placing and leaving the dead body of said child in a
secret place, contrary to the form of the statute in such cases made
and provided, and against the peace and dignity of the state.
J. S. Adams, Solicitor.
II. OF A BASTARD CHILD. 1
1. Generally.
Form No. 6004.
In the Circuit Court, for the Third Judicial Circuit of Florida,
Suwannee County, November Term, in the year of our Lord one
thousand eight hundred and ninety-seven.
The State of Florida^ Indictment for Concealing Death of Bastard
J ga \ Child.
Mary Doe. )
In the name and by the authority of the state of Florida : The
grand jurors for the state of Florida impaneled and sworn to inquire
and true presentment make in and for the body of the county of
Suwannee, upon their oath do present, that Mary Doe, single woman,
late of the said county of Suwannee, and state of Florida, on the first
day of October, in the year of our Lord one thousand eight hundred
and ninety-seven, in the county and state aforesaid, being then and
there pregnant and big with a male (or female) child, afterward, to
wit, on the same day and year aforesaid, was then and there delivered
of the said child alive, which said child being so delivered as afore-
said, and so being the issue of the body of her the said Mary Doe,
was by the laws of this state a bastard; and that the said child after-
ward, to wit, on the same day and year aforesaid, in the county and
state aforesaid, sickened and died; and that afterward, to wit, on the
same day and year aforesaid, in the county of Suwannee aforesaid, the
said Mary Doe, as soon as the child was dead, did then and there
unlawfully conceal the death of said bastard child, the said issue of
her body, so that it might not be known whether such child was born
alive or not, or whether it was murdered or not; against the peace
and dignity of the state of Florida.
Paul Jones, State's Attorney
for the Third Judicial Circuit of Florida.
endeavor to conceal the birth of such Georgia. 3 Code (1895), 79.
child. This latter is the criminal act Massachusetts. Pub. Stat. (1882), c.
imputed to the accused, and it is 207, n.
brought within the condemnation of Michigan. How. Anno. Stat. (1882),
the law by the averment of hiding of 9284.
the body in a secret place, whereby its Oregon. Hill's Anno. Laws (1892),
birth is attempted to be concealed." 1865.
1. See also the title BASTARDY, vol. 3, Rhode Island. Gen. Laws (1896), c.
Forms Nos. 4064 to 4066. 281, 10.
2. Florida. Rev. Stat. (1892), 2393. Wisconsin. Sanb. & B. Anno. Stat.
See also similar statutes as follows: (1889), 4585.
31 Volume 5.
6005. CONCEALMENT OF BIRTH OR DEATH. 6006.
Form No. 6005.'
State of Maine.
Kennebec, ss. At the Superior Court begun and held at Augusta,
within and for said county of Kennebec, on the first Tuesday of Septem-
ber, in the year of our Lord eighteen hundred and ninety-six, the grand
jurors for said state upon their oath present that Mary Doe, of
Augusta, in the county of Kennebec, single woman, at Augusta, in said
county of Kennebec, on the fourth day of July, in the year of our
Lord eighteen hundred and ninety-six, being then and there pregnant
and big with a male (or female) child, was then and there willingly
delivered in secret of said male (or female) child, the issue of the
body of her the said Mary Doe, which said child, being so delivered
as aforesaid, would, under the laws of this state, be a bastard if born
alive; and that the said child, then, to wit, on the day and year afore-
said, died; and the said Mary Doe, afterward, to wit, on the same
day and year aforesaid, in the county of Kennebec aforesaid, did then
and there conceal the death of said child, the issue of her body as
aforesaid, so that it is not known whether said child was born dead,
or alive and was murdered; against the peace of said state, and con-
trary to the form of the statute in such case made and provided.
Freeman P. Lane, Foreman.
Dennis Kimberly, County Attorney.
Form No. 6006 . J
In the Court of Quarter Sessions of the Peace for the County of
Dauphin, February Session, i8#7.
Dauphin County, ss. The grand inquest of the commonwealth of
Pennsylvania inquiring in and for the county of Dauphin, upon their
respective oaths and affirmations do present that Mary Doe, late of
the county of Dauphin aforesaid, on the first day of January, in the year
of our Lord one thousand eight hundred and ninety-seven, at and in
the county aforesaid, being big with a male (or female) child, the
same day and year, in the county aforesaid, did bring forth the said
child of the body of her the said Mary Doe, which said male (or
female} child, if it were born alive, 3 would by the law of this common-
wealth be a bastard; and the said male (QT female) child afterward,
to wit, on the same day and year aforesaid, at and in the county
aforesaid, died, 4 and the said Mary Doe, afterward, to wit, on the
1. Maine. Rev. Stat. (1883), c. 124, The North Dakota statute concerning
7. For a statute nearly identical see the concealment of death relates only
N. H. Pub. Stat. (1891), p. 739, 14. to children under the age of ten years.
2. Pennsylvania. Bright. Pur. Dig. 3. Child Born Alive. It is not neces-
(1894), p. 472, 3. See also the follow- sary in the indictment to allege that the
ing statutes, which are nearly identical child was born alive. Douglass v.
with the above, to wit : Com., 8 Watts (Pa.) 535.
Colorado. Mills' Anno. Stat. (1891), 4. Death of Child must be Alleged.
1195. The death of the child must be dis-
Illinois. Starr & C. Anno. Stat. tinctly averred, and nothing can be
(1896), p. 1249, par. 93. taken byway of intendment or recital
Nevada. Gen. Stat. (1885), 4597. to supply the want of certainty in this
North Dakota. Rev. Codes (1895), respect in the indictment. Douglass v.
7I79- Com., 8 Watts (Pa.) 535.
33 Volume 5.
6007. CONCEALMENT OF BIRTH OR DEATH. 6007.
day of January, in the year aforesaid, at and in the county
aforesaid, as soon as the said male (or female) child was born, did
endeavor 1 privately to conceal 2 the death of the said child, so that
it might not come to light whether it were born dead or alive, or
whether it was murdered or not; contrary to the form of the act of
general assembly in such case made and provided, and against the
peace and dignity of the commonwealth of Pennsylvania.
Cornelius Darragh, District Attorney.
2. Alleging Manner of Concealment.
Form No. 6007.
(Precedent 5n Sullivan v. State, 36 Ark. 65.)*
[State of Arkansas. \ T , . , ~. ..
^ Independence County. } Inde P end Ctrcutt Court.]*
The grand jury of Independence county [in the name and by the
authority of the state of Arkansas] 3 accuse Mary O. Sullivan of the
crime of endeavoring privately to conceal the death of issue of her
body, committed as follows, to wit: The said Mary O. Sullivan, on
the twelfth day of May, i880, in the county aforesaid, then and there
being pregnant, gave birth to a child, [which by the laws of this state
was a bastard,] 5 which said child then and there died; 6 and that the
said Mary O. Sullivan then and there feloniously did endeavor pri-
vately to conceal the death of said child, that it might not come to
light, by then and there feloniously and secretly depositing the corpse
of said child in a well, 7 against the peace [and dignity of the state
of Arkansas.
Daniel Webster, Prosecuting Attorney
Third Judicial Circuit of Arkansas. ] 4
In Boyles v. Com., 2 S. & R. (Pa.)4O, 2. Manner of Concealment. It is not
the portion of the indictment under necessary to set forth in the indictment
consideration was the averment of the manner or by what acts the accused
death, which was as follows, and was endeavored to conceal the death of the
held to be sufficient: " Which same in- child. Boyles v. Com., 2 S. & R. (Pa.)
fant, so being brought forth alive, was, 43.
by the laws of this commonwealth, a 3. Arkansas. Sand. & H. Dig.
bastard, and that the said Sarah Boyles (1894), 1666, 1667.
afterwards, to wit, the same day and 4. The words enclosed by [ ] will not
year aforesaid (the said female infant be found in the reported case, but have
having, on the day and year last afore- been added to render the form corn-
said, at the township and county afore- plete.
said, died), did endeavor, privately, to 5. Averment that Child was a Bastard.
conceal the death of the said female in- The words " which by the laws of this
fant, so that it might not come to light state was a bastard" have been inserted,
whether the said female infant was born as in this case it was held that the in-
dead or alive, or whether the said female dictment must allege that the child was
infant was murdered or not, contrary a bastard.
to the form of the act of general 6. Averment of Death of Child. The
assembly." indictment must expressly and dis-
1. Endeavor to Conceal. An "en- tinctly allege that the child is dead.
deavor to conceal," and not " conceal- But it need not state whether the child
ing," constitutes the offense, and it died before, at or after its birth. State
should be so alleged in the indictment, v. Ellis, 43 Ark. 93.
Boyles v. Com., 2 S. & R. (Pa.) 43. 7. Manner of Concealment. The in-
5 E. of P.P. 3. 88 Volumes.
6008. CONCEALMENT OF BIRTH OR DEATH. 6008.
Form No. 6008.'
Nicholas Circuit Court.
The Commonwealth of Kentucky
against
Jane Doe.
The grand jury of Nicholas county, in the name and by the authority
of the commonwealth of Kentucky, accuse Jane Doe of the crime of
endeavoring privately to conceal the death of a bastard child, the issue
of her body, committed as follows, to wit : The said Jane Doe, on the
twenty-seventh day of November, iS97, in the county aforesaid, being
then and there pregnant and big with a male (or female} child, was
then and there delivered of the said child, the issue of her body, which
said child, if the same had been born alive, would, by the laws of this
commonwealth, have been a bastard, and afterward, to wit, on the same
day and year last aforesaid, in the county aforesaid, the said Jane
Doe did unlawfully and feloniously endeavor privately, by drowning 2
the said child, to conceal the birth thereof, so that it might not be
known whether the said child were born alive or not, against the peace
and dignity of the commonwealth of Kentucky.
dictment need not allege in what man-
ner or by what acts the mother endeav-
ored to conceal the death of her child.
State v. Ellis, 43 Ark. 94.
1. Kentucky. Gen. Stat. (1888), p.
410, 14. See also a similar statute in
Mo. Rev. Stat. (1889), 3479. The
Missouri statute, however.does not con-
fine the punishment to the concealment
of the death of a bastard child.
Precedent. In State v. Joiner, 4
Hawks (N. Car.) 351, one count of the
indictment was as follows :
" That the said Ri nney Joiner, on the
twenty-seventh of November" etc., " be-
ing big with a certain male child, after-
wards, to wit, on the same day and
year last aforesaid, at and in the county
of Pitt aforesaid, by the providence
of God, did bring forth the said child
of the body of her the said Rinney
Joiner, alone and in secret, which said
male child, if the same had been born
alive, would by the laws of this state
have been a bastard; and that the said
Rinney Joiner, being moved by the in-
stigation of the devil, afterwards, to
wit, on the said twenty-seventh day of
November, in the year," etc., " as soon
as the said male child was born, with
force and arms, at and in the county of
Pitt aforesaid, unlawfully, wickedly
and wilfully, did throw, put and place
the said male child under and beneath
a crib there situate; and the said male
child did then and there, under and be-
neath the crib aforesaid, unlawfully,
wickedly and wilfully, hide, secrete
and conceal, she the said Rinney Joiner,
in manner and form last aforesaid, en-
deavoring privately so to conceal the
death of the said male child that it
might not come to light whether the
said child were born alive or not, but be
concealed, against the form of the stat-
ute."
This indictment was drawn under an
early North Carolina statute nearly
identical with the statutes of Kentucky
and Missouri. For an indictment under
the present North Carolina statute see
supra, Form No. 6003.
2. Means of Concealment. The statute
requires a physical concealment of the
bastard child, either by drowning,
burying, or in some other way, there-
fore the acts constituting the offense of
concealment must be stated in the in-
dictment; and an allegation that the
accused " did feloniously conceal the
birth of a bastard child, the issue of her
body, by secreting the said child so that
it might not be known whether or not
it had been born alive, said child being
dead when found," is only the state-
ment of a conclusion of law, and is in-
sufficient to support a judgment of
conviction. Foster v. Com., 12 Bush
(Ky.) 373-
34
Volume 5.
6009. CONCEALMENT OF BIRTH OR DEATH. 6010.
3. For Being- Delivered in Secret.
Form No. 6009 .'
To the Hon. Superior Court for the County of New Haven, now in
session :
Daniel Webster, of New Haven, Esquire, attorney for the state in and
for said county, here in court informs that Jane Doe, of said New
Haven, was pregnant of a child of her body, which when born would
be a bastard, and on the third day of January, iS98, at said town of
New Haven, she unlawfully concealed said pregnancy, and was then
and there willingly and intentionally delivered in secret by herself of
- her said child, the issue of her body, against the peace, and contrary
to the statute in such case made and provided ; wherefore the said attor-
ney prays that a bench warrant may issue against the said Jane Doe,
that she may be arrested and brought before this court to answer to this
information and be dealt with according to law.
Daniel Webster, Attorney.
III. AIDING, ABETTING AND ASSISTING. Z
i
Form No. 60 io. 3
Providence, sc. At the Court of Common Pleas of the State of
Rhode Island and Providence Plantations holden at Providence, within
and for the county of Providence, on the first Monday of February, in
the year of our Lord one thousand eight hundred and ninety-eight.
The grand jurors for the state of Rhode Island and Providence Plan-
tations, in and for the county of Providence, upon their oaths present
that Jane Doe, of Cranston in said county, spinster, on the eleventh
day of November, in the year of our Lord one thousand eight hundred
and ninety-seven, with force and arms at Cranston aforesaid, in the
aforesaid county of Providence, being big with a certain child, the
same day and year last aforesaid, at Cranston aforesaid, did bring
forth the said child of the body of her the said Jane Doe, which said
child so being brought forth alive was, by the laws of this state, a
bastard, and that the said Jane Doe afterward, to wit, on the same
day and year last aforesaid, at said Cranston, did conceal the birth of
said child, so that it might not appear whether said child was born
dead or alive, and that Richard Roe of said Cranston, laborer, and
Cynthia Roe, wife of the said Richard, at said Cranston, on the said
eleventh day of November, in the year of our Lord one thousand eight
hundred and ninety-seven, did feloniously and wickedly aid, assist,
1. Connecticut. Gen. Stat. (1888), was held that, upon proper proof, the
1533. See also a similar statute in New defendants might be convicted of aid-
Jersey. N. J. Gen. Stat. (1895), p. 1064, ing, assisting, etc., the commission of
g 83. the offense, although the indictment
2. See also Reg. v. Bird, 2 C. & K. does not charge them with being
817, 61 E. C. L. 817, for the substance "present" and aiding, abetting, etc.
of a sufficient indictment. The indictment was under R. I. Stat.
3. This is substantially the second (1844), 86, which statute is identical
count of the indictment in State v. with R. I. Gen. Laws (1896), c. 281,
Sprague, 4 R. I. 257, in which case it 10.
35 Volume 5.
60 1 0. CONDEMN A TION PROCEEDINGS. 60 1 0.
abet, counsel, hire, commission and procure the said Jane Doe the
said offense in manner and form aforesaid to do and commit, against
the form of the statute in such case made and provided and against
the peace and dignity of the state.
Daniel Webster, Attorney -General.
CONDEMNATION PROCEEDINGS.
See the title EMINENT DOMAIN.
36 Volume 5.
CONFESSION AND AVOIDANCE. 1
BY THOMAS E. O'BRIEN.
I. BY PLEA OR ANSWER, 37.
II. BY REPLICATION OR REPLY, 42.
III. BY NOTICE OF SPECIAL DEFENSE, 44.
CROSS-REFERENCES.
For Forms of other Pleas and Answers setting up new matter in Con-
fession and Avoidance, see the various special pleas treated in this
work, such as ACCORD AND SATISFACTION; AN-
SWERS IN CODE PLEADING; ARBITRATION AND
AWARD; CHAMPERTY AND MAINTENANCE;
COMPROMISE; CONSIDERATION; COVERTURE;
DECEIT; DURESS; ESTOPPEL; FALSE REPRE-
SENTATIONS; FRAUD; DRUNKENNESS; IN-
FANCY; INSANITY; INSOLVENCY; LACHES;
PAYMENT; PERFORMANCE; PLEAS; RELEASE
AND DISCHARGE; RES JUDICATA ; SET-OFF
AND COUNTERCLAIM; STATUTE OF FRAUDS;
STATUTE OF LIMITATIONS; USURY; etc., and the
GENERAL INDEX to this work.
For matters of Procedure, see the title CONFESSION AND A VOID-
ANCE, 4 ENCYCLOPAEDIA OF PLEADING AND PRACTICE, p. 664
et seq.
I. BY PLEA OR ANSWERS
1. Specially Pleaded. New matter in 2. For formal parts of pleas, generally,
confession and avoidance must be consult the title PLEAS; and for the
specially pleaded, i Chit. PI. (i6th Am. formal parts of answers, generally, con-
ed.) 518, 532, 535; Parker z,. Lowell, n suit the title ANSWERS IN CODE PLEAD-
Gray (Mass.) 353; Blair v. Coffman, 2 ING.
Overt. (Tenn.) 176; Maggort v. Hans- The plea must admit the facts alleged
barger, 8 Leigh (Va.) 540; Churcill in the declaration and avoid them by
v. Bauman, 95 Cal. 545; Stringer v. matter which plaintiff would not be
Breen, 7 Ind. App. 559; Norris v. Casel, bound to prove if the general issue only
90 Ind. 143; Byrne v. Hibernia Nat. had been pleaded, i Chit. PI. (iGth
Bank, 31 La. Ann. 84; Nash v. St. Am. ed.) 552; Taylor v. Cole, 32 T.
Paul, ii Minn. 174; Musser v. Adler, R. 298; Manchester v. Vale, I Saund.
86 Mo. 445; Moore v. Ringo, 82 Mo. 27; Griffith v. Eyles, I B. & P. 413;
468; George v. Williams, 58 Mo. App. M'Pherson v. Daniels, 10 B. & C. 263;
138; Hardwick v. Cox, 50 Mo. App. 21 E. C. L. 69; Ocean Steamship Co. v.
509; Paige v. Willett, 38 N. Y. 28; Roe Williams, 69 Ga. 251; Augusta Factory
v. Angevine, 7 Hun(N. Y.) 679; Ores- v. Barnes, 72 Ga. 217; Phelps v. Thur-
ler v. Hard, 57 N. Y. Super. Ct. 192; man, 74 Ga. 837; Seymour v. Bailey, 76
Lupo v. True, 16 S. Car. 587. Ga. 340; Anson v. Dwight, 18 Iowa.
37 Volume 5.
6011.
CONFESSION AND A VO I DANCE.
6011.
242; Martin v. Swearengen 17 Iowa
349; Morgan v. Hawkeye Ins. Co., 37
Iowa 360; State v. Williams, 48 Mo.
212; Bauer v. Wagner, 39 Mo. 385; Day
v. Mill-Owners' Mut. F. Ins. Co., 75
Iowa 700; Keedy v. Long, 71 Md. 388;
Brandegee v. National Ins. Co., 20
Johns. (N. Y.) 333; Auburn Bank v.
Weed, 19 Johns (N. Y.) 300; Conger v.
Johnston, 2 Den. (N. Y.) 96; McMurray
v. Gifford, 5 How. Pr. (N. Y. Supreme
Ct.) 15; Brown v. Artcher, I Hill (N. Y.)
266; Tobias v. Rogers, 3 Code Rep. (N.
Y. Supreme Ct.) 156; Blood v. Adams,
33 Vt. 52; Dibble v. Duncan, 2 McLean
(U.S.) 553-
But the cause of action need not be
confessed precisely as alleged. Cooper
v. Smith, 119 Ind. 315.
A party is not required to admit all
the facts alleged in order to admit some
of them, or to deny all the facts in order
to deny a part of them. He may admit
such facts as he supposes to be true,
and excuse or avoid them, and deny
the alleged facts which he believes are
not true. State v. St. Paul, etc., Turn-
pike Co., 92 Ind. 42.
Where the defendant's pleas admitted
in effect the making of a contract and
its subsequent breach by the defendant,
but one of which set up a justification,
and two others set up a judgment, they
were held to be good pleas by way of
confession and avoidance. Keedy v.
Long, 71 Md. 388.
Must Answer the Whole Declaration or
Count. Manchester v. Vale, r Saund.
28, note 3; Racer v. State, 131 Ind. 401;
Hutchinson v. Sangster, 4 Greene
(Iowa) 341; Armfield v. Nash, 31 Miss.
366; Ayrault v. Chamberlain, 33 Barb.
(N. Y.) 237; Bebout v, Simmonds, Tap-
pan (Ohio) 260.
Where new matter is pleaded as a par-
tial defense under the code, unless it is
expressly so stated it will be assumed
the matter is pleaded as a complete de-
fense. Thompson ?'. Halbert, 109 N.
Y. 329; Mattice v. Wilcox, (Supreme Ct.)
36 N. Y. St. Rep. 915.
The defense need not be stated com-
pletely in one paragraph or count. It
may refer to matter in other counts,
and the matter thus referred to may be
considered as a part of the count in
which it is referred to. Dexter v. Al-
fred, (Supreme Ct.) 46 N. Y. St. Rep.
791; Bogardus v. New York L. Ins. Co.,
101 N. Y. 328.
Unless the answer in terms adopts or
refers to matter contained in some
other count, it will be tested as a plead-
ing alone by the matter itself contained.
Baldwin v. U. S. Telegraph Co., 54
Barb. (N. Y.) 517.
Facts must be Stated upon which the
Defense Eelies. Raymond v . Pritchard,
24 Ind. 320; Knowles v. Gee, 4 How.
Pr. (N. Y. Supreme 'Ct.) 317; Russell
v. Clapp, 4 How. Pr. (N. Y. Supreme
Ct.) 347; Glenny v. Hitchins, 4 How.
Pr. (N. Y. Supreme Ct.) 98; Williams v.
Hayes, 5 How. Pr. (N. Y. Supreme Ct.)
470; McMurray v. Gifford, 5 How. Pr.
(N. Y. Supreme Ct.) 15; Weed v. Hill,
2 Miles (Pa.) 122; Elmore v. Hill, 46
Wis. 618.
Facts must be Stated Clearly and with
Certainty. Hudson v. Wabash Western
R. Co., 101 Mo. 13; Northrup v. Mis-
sissippi Valley Ins. Co., 47 Mo. 444;
Ells v. Pacific R. Co., 51 Mo. 200;
Gihon v. Levy, 2 Duer (N. Y.) 180;
Lewis v. Kendall, 6 How. Pr. (N. Y.
Supreme Ct.) 59; Bateman v. Johnson,
10 Wis. I.
An answer cannot confess and avoid and
also deny the cause of action in the same
paragraph. Cronk v. Cole, 10 Ind. 485;
Kimble v. Christie, 55 Ind. 140; Woollen
v. Whitacre, 73 Ind. 201; Richardson
v. Snider, 72 Ind. 425; States. Foulkes,
94 Ind. 498; Petty v. Church of Christ,
95 Ind. 278; Nysewander v. Lowman,
124 Ind. 590; Racer v. State, 131 Ind.
401; Coble v. McDaniel, 33 Mo. 363;
Adams v. Trigg, 37 Mo. 143; Darrett
v. Donnelly, 38 Mo. 492; Smith v. Cul-
ligan, 74 Mo. 387; Zacharias v. French,
i Chiu PI. (i6th Am. ed.) 559, 10 Misc.
Rep. (N. Y. C. PI.) 202, 24 Civ. Proc.
Rep. (N. Y.) 88.
But a paragraph in an answer may
confess and avoid part of the cause of
action and deny other facts stated in
the complaint. Colglazier v. Colgla-
zier, 117 Ind. 463; State v. St. Paul,
etc., Turnpike Co., 92 Ind. 42.
A denial may be pleaded in the same
answer with new matter. South Da-
kota v. McChesney, 87 Hun (N. Y.) 294;
Whedbee v. Reddick, 79 N. Car. 518;
Sumner v. Shipman, 65 N. Car. 623;
Reed v. Reed, 93 N. Car. 465.
A Pleading Cannot Constitute both an
Answer and a Cross Complaint. Crow v.
Carver, 133 Ind. 262; Conger v. Miller,
104 Ind. 592; Anderson Bldg., etc.,
Assoc. v. Thompson, 88 Ind. 414;
Washburn v. Roberts, 72 Ind. 213.
Hypothetical pleading is not allowed
generally, i Chit. PI. (i6th Am. ed. )
552; Margettsz/. Bays, 4 Ad. & 1.489, 31
E. C. L. 117; Sayles v. Wooden, 6 How.
Pr. (N. Y.) 84. It has been held, how-
8 Volume 5.
6011. CONFESSION AND A VOI DANCE. 6011.
Form No. 6011.'
In the Kings Bench.
Trin. Term, 51 Geo. III.
Richard Roe
ats.
John Doe.
(First plea, general issue.) 2
And for a further plea in this behalf as to the fishing in the said
fishery in the saidy^r^/ 3 count mentioned and the said fish there found
and being, catching, seizing, taking and carrying away and converting
and disposing thereof to his own use, the said Richard Roe, by leave of
the court here for this purpose first had and obtained according to the
form of the statute in such case made and provided, says that the
said John Doe ought not to have or maintain his aforesaid action
thereof against him, because, he says that the place in which the said
supposed several fishery now is and at the several times, when, etc.,
was a certain close, or place or piece or parcel of land covered with
water and which said close, or piece or parcel of land, now is, and at
the said several times, when, etc., was the close, soil and freehold of
the said Richard Roe, wherefore the said Richard Roe, at the said
several times, when, etc., entered into the said close, piece or parcel
of land, and fished there for fish, and the said fish in the said first
count mentioned there found and being, caught, seized, took and
carried away and converted and disposed thereof to his own use as
it was lawful for him so to do for the cause aforesaid; which are the
said several supposed trespasses in the introductory part of this plea
mentioned whereof the said John Doe hath complained against him
the said Richard Roe* And this the said Richard Roe is ready to
ever, that in certain cases the defend- being inconsistent. Smith, Adm'r, v.
ant may answer hypothetically. He Culligan, 74 Mo. 387.
may be ignorant of the truth of plain- 1. At common law, this plea is suffi-
tiff's allegations, or he may know them cient as setting up matter in confession
to be false. Ketcham v. Zerega, i E. D. and avoidance. 2 Chit. PI. 609.
Smith (X. Y.) 553; Brown v. Ryckman, 2. General issue in trespass, at common
i2How. Pr. (N. Y. C. Pl.)3i7. And the law, was as follows: "And the said
plea "that the said several supposed Richard Roe, \>y Jeremiah Mason, his at-
causes of action " has been held to be torney, comes and defends the force
good. Eavestaff v. Russell, 10 M. & and injury, when, etc., and says, that
W. 365. he is not guilty of said supposed tres-
Inconsistency. Where an action was passes above laid to his charge or any
brought by an administrator de bonis part thereof in manner and form as the
non for the recovery of money de- said_/0^ Doe hath above thereof com-
posited with the defendant by the plained against him. And of this he,
decedent, the defendant's answer ad- the said Richard Roe, puts himself upon
mitting the debt of decedent and also the country," etc. See also the title
of the deposit alleged first payment of PLEAS.
the entire amount deposited to the 3. Where the answer is to one count,
former administrator in his repre- it must appear what count it is intended
sentative capacity and a subsequent to answer. Kneedler v. Sternbergh, 10
deposit by him of such amount to his How. Pr. (N. Y. Supreme Ct.) 67.
individual account; secondly, the pay- 4. This is a second plea to trespass for
ment, upon the order and direction of fishing in a several fishery, setting up
the previous administrator, of divers that the locus in quo was the defendant's
sums amounting to the whole sum de- freehold. 2 Chit. PI. 609.
posited was held to be bad, the defenses To trespass for assault and battery the
39 Volume 5.
6012. CONFESSION AND AVOIDANCE. 6013.
verify, 1 wherefore he prays judgment if the said John Doe ought to
have or maintain his aforesaid action thereof against him, etc.
Form No. 6012.*
In the King's Bench.
The 9th day of February, iS88.
Richard Roe } The said defendant, by Jeremiah Mason, his attorney,
ats. > says that after the making of the said promise (or
John Doe. ) accruing of the said causes of actioif) in the declaration
mentioned and before the commencement of this suit, to wit, on the
tenth day of July in the year eighteen hundred and thirty-seven, the
plaintiff by his certain writing of release sealed with his seal and now
shown to the said court here, the date whereof is the day and year
last aforesaid, do remise, release and forever quitclaim unto the said
defendant, his heirs, executors and administrators, the said promise
(or causes of action and each and every of them) in the said declaration
mentioned and all sum and sums of money then due and owing (as in
the release} as by the said deed or writing of release, reference being
thereunto had will fully appear, and this the defendant is ready to
verify.
Jeremiah Mason, Attorney for Defendant.
Form No. 6oi3. 3
John Doe \ Jn Wa shington County Court,
against v September Term, A. D. i807.
Richard Roe. ) *
And the said Richard Roe, by Jeremiah Mason, his attorney, comes
and defends the force and injury, when, etc., and says that he is not
guilty of the trespasses above laid to his charge, in the manner and
following plea was held to be good: "As the plaintiff it was in the defense of
to the assaulting of the plaintiff and beat- possession of the said close." Weaver
ing, bruising and ill treating him with v. Bush, 8 T. R. 78. Consult also title
the said stick, giving and striking him ASSAULT, vol. 2, Forms Nos. 2502, 2503.
the said blows, etc , he the defendant 1. Verification. All pleas by way of
at the time when, etc., was lawfully pos- confession and avoidance must conclude
sessed of and in a certain close called, with a verification, i Chit. PI. (i6th
etc., at, etc., and being so possessed the Am.ed.)s83; Bennetz/. Filkins, iSaund.
plaintiff at the said time when, etc., 22; Union Bank v. Ridgely, i Har. & G.
with force and arms and with a strong (Md.) 325; Dewees -v. Manhattan Ins,
hand as much as in him lay did attempt Co., 34 N. J. L. 253; Patrick v. Brown,
and endeavor forcibly to break into 7 Phila. (Pa.) 133; Mayer v. Gimbel, 9
and enter the said close of the defend- Phila. (Pa.) 90; Joslyn v. Tracy, 19 Vt.
ant, and would have broken into and 569; Virginia F. & M. Ins. Co. v. Saun-
entered the said close without the ders, 84 Va. 210.
defendant's license and against his will, 2. Under the Hilary rules, this plea
whereupon the defendant, being then in of release is good. Petersdorf's Prec.
his said close and seeing the said 319. The form applies only to a gen-
attempt and endeavor of the plaintiff, eral release. See also the title RELEASE
did then and there resist and oppose AND DISCHARGE.
such entrance into the said close and 3. In common-law states this plea in
upon that occasion did then and there trespass is good as an illustration of
defend his possession as it was lawful a plea of confession and avoidance,
for him to do, and that if any damage Aiken's Prac. F. (Vt.) 310.
or injury then and there happened to
40 Volume 5.
6014. CONFESSION AND AVOIDANCE. 6014.
form as the said John Doe hath above complained against him; and
of this he, the said Richard Roe, puts himself upon the country, etc.
And as to the breaking and entering the said dwelling-house in the
said declaration mentioned and in which, etc., and staying and con-
tinuing therein for the said space of time in the said declaration also
mentioned above to have been done by the said Richard Roe, he the
said Richard Roe, by leave of the court here for this purpose first had
and obtained according to the form of the statute in such case made
and provided, says that the said John Doe ought not to have his
aforesaid action thereof maintained against him, because he says
that the said dwelling-house in the said declaration mentioned and in
which, etc., long before at the same time, etc., was and still is the
dwelling-house and freehold of him the said Richard Roe, wherefore
he the said Richard Roe, at the said time when, etc., broke and entered
the said dwelling-house as being the dwelling-house and freehold of
him the said Richard Roe and stayed and continued in the said dwelling-
house for the said space of time in the said declaration mentioned as
it was lawful for him to do for the cause aforesaid, which are the
supposed trespasses in the introductory part of this plea mentioned,
whereof the said John Doe hath above complained of the said Richard
Roe, and this he is ready to verify, wherefore he prays judgment if
the said John Doe ought to have the aforesaid action maintained
against him.
Jeremiah Mason, Attorney for Defendant.
Form No. 6014.-
John Doe, plaintiff, \ j h c - . c c
against r r T>
D- L j D AC A .. i January Term, iS98.
Richard Roe, defendant. ) J
Defendant, for answer to plaintiff's petition, admits the allegations
therein contained as to the receipt by defendant of the said wheat,
but says that at the time of the alleged conversion of the same de-
fendant was engaged in the business of conducting a warehouse and
selling and shipping grain, and that in the course of his business he
deposited all grain received from depositors in a common bin with
wheat bought by defendant, and from this bin wheat was taken and
sold by him; that the plaintiff knew of this custom; that the de-
fendant had in the common bin at all times before the eighth day of
October, iS97, sufficient wheat of the kind deposited by the plaintiff
to replace that received, and on that day the warehouse and all of
its contents was destroyed by fire and without any fault or negligence
on the part of defendant. 2
Jeremiah Mason, Attorney for Defendant.
( Verification.^
1. Under the codes and practice acts confession and avoidance in Botten-
of the various states, this answer is berg v. Nixon, 97 Ind. 106.
good as one of confession and avoid- 3. Verification. For the necessity for
ance. 2 Mo. Rev. Stat. (1889), p. 2238. and form of a verification, generally,
2. The facto set out in this answer consult the title VERIFICATIONS.
were held to constitute a good plea in
41 Volume 5.
6015. CONFESSION AND A VO I DANCE. 60 It.
II. BY REPLICATION OR REPLY. 1
Form No. 6015.*
In the King's Bench.
Trin. Term, 51 Geo. III.
John Doe
against
Richard Roe.
And the said John Doe, as to the said plea of the said Richard Roe
by him secondly above pleaded as to the several trespasses in the in-
troductory part of that plea mentioned and therein attempted to be
justified, saith that he the said John Doe, by reason of anything by
the said Richard Roe in that plea alleged, ought not to be barred
from and having and maintaining his aforesaid action thereof against
him the said Richard Roe, because he saith that whilst the said
dwelling-house was the dwelling-house and freehold of the said Rich-
ard Roe, and before the said time when 'the several trespasses in
the introductory part of the said plea mentioned were committed,
to wit, on the tenth day of June, A. D. i8, at London aforesaid, he
the said Richard Roe demised the said dwelling-house with the appur-
tenances to the said John Doe to have and to hold the same to him the
said John Doe for and during and unto the full end and term of one year
from thence next ensuing and fully to be complete and ended and so
from year to year and for so long a time as they the said John Doe and
Richard Roe should respectively please. By virtue of which said
demise, he the said John Doe afterwards and before the said time
when the above trespasses were committed, entered into the said
dwelling-house and became and was possessed thereof and continued
so thereof possessed from thence until the said Richard Roe after-
wards and during the continuance of said demise, to wit, at the said
time when the said Richard Roe of his own wrong broke and entered
the said dwelling-house and committed the said several trespasses in
the introductory part of the said plea mentioned in the man-
ner and form as the said John Doe hath thereof complained "against
him the said Richard Roe, and this the said John Doe is ready to verify.
Wherefore the said John Doe prays judgment and his damages by
him sustained by reason of the committing of said trespasses to be
adjudged to him.
1. For the formal parts of a replica- ing the title REJOINDERS, etc., for the
tion, generally, see the title REPLICA- formal parts, and alleging such new
TIONS; for the formal parts of a reply, matter in like manner as the same is
generally, see the title REPLIES. set out in the pleas and replications
By rejoinder or other subsequent plead- given in the text, Forms Nos. 6011 to
ing new matter may be pleaded in con- 6015.
fession and avoidance. The form of 2. At common law, this replication is
such rejoinder or other subsequent good as setting up facts in confession
pleading may be drawn by consult- and avoidance. 2 Chit. PI. 696.
42 Volume 5.
60 1 6. CONFESSION AND A VOI DANCE. 60 1 7.
Form No. 6016.'
In the King's Bench.
The 9th day of February, i838.
John Doe ) The plaintiff as to the plea of the defendant by him
against > secondly above pleaded says, that whilst the said
Richard Roe. ) close was the close and freehold of the defendant,
and before the time, when, etc., to wit, on, etc., the defendant demised
the said close, with the appurtenances, to the plaintiff, to have and to
hold the same to him the plaintiff for and during and unto the full
end and term of seven years from thence next ensuing^and fully to be
complete and ended. By virtue of which said demise, the plaintiff
afterwards, and before the said time, when, etc., entered into the
close and became and was possessed thereof and continued so
thereof possessed from thence until the defendant afterwards and
during the continuance of such demise, to wit, at the time, when, etc.,
of his own wrong broke and entered the close in which, etc., and com-
mitted the several trespasses in the plea mentioned, in manner
and form as the plaintiff has above thereof complained against the
defendant, and this the plaintiff is ready to verify.
Oliver Ellsworth, attorney for John Doe, plaintiff.
Form No. 6017.*
John Doe ) Jn Washington County Court,
Term ' A '
{Similiter joining issue to first pica. ) 3
And as to the plea by the said Richard Roe secondly above pleaded
as to the several trespasses in the introductory part of that plea
mentioned thereby attempted to be justified, the said. John Doe says
that by reason of anything by the said Richard Roe in that plea above
alleged, ought not to be barred from having his aforesaid action
thereof against him, because he says that just before the said time
when, etc., the said cattle in the said declaration mentioned were
wrongfully turned and driven by the said Richard Roe from and out
of the said highway into and upon the said close or piece and parcel
of land in which, etc., and upon that occasion by means and con-
sequence thereof the said cattle were at the said first time, when, etc.,
in the said close in which, etc., depasturing on the grass there then
growing and doing damage there, in manner and form as the said
John Doe hath above thereof complained against him the said Rich-
ard Roe, and this the said John Doe is ready to verify; wherefore the
said John Doe prays judgment and his damages by him sustained by
reason of the committing of the said trespasses to be adjudged to
him, etc.
Oliver Ellsworth, Plaintiff's Attorney.
1. Under Hilary rules, this replication 3. Similiter joining issue, in common-
is good as setting up facts in confession law states, as in Vermont, may be as
and avoidance. Petersdorf's Prec. 267. follows: " And the said JoAn Doe, as to
2. In common-law states this form is an the first plea of the said Richard Roe
illustration of a replication setting up above pleaded and whereof he hath
matter in confession and avoidance, put himself upon the country, doth so
Aiken's Prac. F. (Vt.) 311. likewise." Aiken's Prac. F. (Vt.) 299.
43 Volume 5.
6018. CONFESSION AND AVOIDANCE. 6019.
Form No. 6018.'
Alabam *' \ I" the Circuit Court, January Term, i898.
John Doe, plaintiff,
against
Richard Roe, defendant.
The plaintiff, for reply to defendant's answer, saith that defendant
knew of plaintiff's dangerous position at the time of said collision
and was guilty of wanton recklessness or gross negligence in running
the said locomotive engine across, over, upon or against plaintiff as
aforesaid.
Oliver Ellsworth, Attorney for Plaintiff.
III. BY NOTICE OF SPECIAL DEFENSE.
Form No. 6019.*
In the King's Bench.
( John Doe, plaintiff,
Between \ and
( Richard Roe, defendant.
Mr. Oliver Ellsworth, attorney for John Doe, take notice that the
above named defendant on trial of this cause will give in evidence
and insist that the above named plaintiff, before and at the time of
the commencement of this suit, was and still is indebted to the said
defendant in the sum of one hundred pounds of lawful money of Great
Britain upon and by virtue of a certain bill of exchange bearing date
the twenty-first day of January, A. D. 1884, heretofore, to wit, on the
day and year last aforesaid, at London, made and drawn by the said
Richard Roe upon, and then and there accepted by the said John Doe,
whereby he the said Richard Roe requested the said John Doe two
months after date thereof to pay him the said Richard Roe or his order
the sum of one hundred pounds for value received, and that the said
defendant will set off and allow to the said plaintiff on the said trial
so much of the said one hundred pounds so due and owing from the
said plaintiff to the said defendant against any demand of the said
plaintiff to be proved on the said trial according to the form of the
statute in such case made and provided. Dated this twelfth day of
November, A. D. iS24-
Yours truly,
Jeremiah Mason, Defendant's Attorney.
1. Under the codes and practice acts, not on defendant to show plaintiff's
this is an illustration of a reply which contributory negligence, but that the
is good as setting up matter in con- plaintiff, having confessed the facts
fession and avoidance. This reply is averred in the plea, must make good
based upon that in Lee v. De Bardele- the allegations in his replication,
ben Coal, etc., Iron Co., 102 Ala. 628, 2. This notice of set-off subscribed at
in which case the court held that the the foot of the general issue is good at
replication confessed the facts averred common law. 3 Chit. PI. 490 et seq.
in the plea of contributory negligence By rules Hilary Term, 4 Wm. IV, set-
and that the averment that defendant off cannot be made available by way of
knew of plaintiff's dangerous posi- such notice, but must be specially
tion, etc., was in avoidance of their pleaded,
effect and that the burden of proof was
44 Volume 5.
6020.
CONFESSION AND A VOIDANCE.
6020.
Form No. 6020.'
{First plead the general issue? then subjoin to the plea the following
notice:} And the defendant gives notice, according to the form of
the statute in such case made and provided, that on the trial of this
cause he will give in evidence and rely upon in defense or justifica-
tion the following special matters, to wit, that: {Here set out con-
cisely, succinctly and intelligibly all the facts relied upon in such defense or
justification in a manner similar to their averments in a pleading.}*
By Jeremiah Mason, Defendant's Attorney.
1. This notice is substantially the
form set out in Aiken's Prac. F. (Vt.)
309.
In Common-law states the defendant
may plead the general issue, and give
notice in writing under the same of the
special matters intended to be relied
on for a defense on the trial.
Illinois. Starr & C. Anno. Stat.
(1896), c. no, g 29.
Similiar or analogous statutes exist
in the other common-law states, such
as
Michigan. How. Anno. Stat. (1882),
7363.
New Hampshire. Pub. Stat. (1891),
c. 223, 3.
New Jersey. Gen. Stat. (1895), p.
2553. "7-
Vermont. Stat. (1894), 1149, 1150.
The Notice stands in place of a special
plea and fills the same office. Sherman
v. Dutch, 16 111. 283.
Must apprise opposite party of facts re-
lied upon as a defense in such a man-
ner that he may be prepared to meet it
and to avoid surprise on the trial. Lig-
gett Spring, etc., Co. v. Michigan Buggy
Co., 106 Mich. 451; Briesenmeister v.
Supreme Lodge, etc., 81 Mich. 531;
Browne v. Moore, 32 Mich. 254. But
it is not required that the facts be
stated with that certainty and formality
required of the special plea. Randall
v. Preston, 52 Vt. 198. See Chit. PI.
(i6th Am. ed.) 491.
2. For form of general issue in common-
law states consult the title PLEAS.
3. For such a statement of facts set up
by way of confession and avoidance in
a plea see supra. Form No. 6017.
Precedent. In Randall v. Preston,
52 Vt. 198, the following notice was
held sufficient : "On the fjt/i day of
January, A. D. iS/j, Oscar F. Merrill,
of Cabot, took out a justice writ against
Ebenezer Thompson, returnable on the
jot/i day of January, A. D. 187^, before
M. P. Wallace, a justice of the peace,
at the office of J. P. Lamson, in Cabot,
in an action on a note, which writ was
put into the hands of W. H. Preston,
this defendant, who was a deputy
sheriff, which writ was served on the
ijtA day of January, iS/j", on Ebenezer
Thompson by attaching a white horse,
which horse is the one in contro-
versy in this suit. Said writ was re-
turned to the said justice and on the
returnable day of said writ it was by
said justice continued for notice to the
defendant under the statute until the
6th day of February, same place and
time of day. And on the 6th day of
February, i87j>, notice having been
proved, a judgment by said justice was
rendered against said Ebenezer Thomp-
son for the sum of $105.40 damages and
$7 .jo cost of suit. And on the 6th day
of February, 1873, execution by said
justice was issued on said judgment for
the same sum and put into the hands
of this defendant as a deputy sheriff,
and on the ijth day of February, A. D.
i87j, said execution was levied on said
horse and the same was advertised on
the ijth of February to be sold at
sheriff's sale by defendant, as sheriff,
on the jd day of March, 187?, at one
o'clock/, m., at the grist mill in North
Danville. Said notice was posted on
said grist mill for the sale of said horse,
and on the 30* day of March said sale
was adjourned to thejM day of March,
at the same time and place, and on the
ft/i day of March said horse was, at
said public sale, sold by this defend-
ant, as a deputy sheriff, to A. H.
Smith, of Danville, he being the high-
est bidder for the same, which execu-
tion was duly returned to said justice;
which horse so attached and sold is
the one in controversy, and was the
property of said Ebenezer duly and
legally attached and sold by the defend-
ant as a deputy sheriff."
45
Volume 5.
CONFESSION OF JUDGMENT.
BY THOMAS E. O'BRIEN.
I. OFFER TO CONFESS JUDGMENT, 47.
1. Notice of Offer, 47.
2. The Offer, 47.
II. CONFESSION, 48.
1. In General, 49.
a. Before Action Commenced, 49.
(1) In Courts of Record, 49.
(a) Generally, 49.
(b) Illustrations, 52.
aa. Upon Account, 52.
bb. Upon Note, 53.
cc. Upon Sealed Instrument, 58.
dd. For Goods Sold, 59.
ee. for Money Loaned, 61.
ff. for Purchase Money of Realty , 63.
gg, for Services Rendered, 65.
hh. To Secure against Contingent Lia-
bility, 67.
//. For Balance Due on Judgments, 69.
(2) In Justice's Court, 70.
b. After Action Commenced Cognovit, 76.
(1) Generally, 76.
(2) With a Relicta Verificatione, 78.
2. By Attorney, 79.
3. By Corporation, 86.
4. By Executor, 88.
5. By Guardian of Lunatic, 89.
ill. RECOGNIZANCE FOR DEBT, 90.
IV. JUDGMENT, 91.
1. Upon Confession of Defendant, 91.
a. In Courts of Record, 91.
(1) In General, 91.
(2) By Cognovit at Common Law, 96.
b. Before Justice of the Peace, 97.
2. Upon Confession of Attorney, 102.
V. WARRANT OF ATTORNEY, 107.
1. Distinct Instrument, 107.
2. Embraced in Another Instrument, in.
46 Volume 5.
6021. CONFESSION OF JUDGMENT. 6022.
CROSS-REFERENCES.
For other Forms of Confessions of Judgment, see the title FRIENDL Y
SUIT; and see also the GENERAL INDEX to this work.
For Forms of Judgments, generally, see the title JUDGMENTS.
For matters of Procedure relating to Confession of Judgment, see the
title COGNOVIT, 4 ENCYCLOPAEDIA OF PLEADING AND PRAC-
TICE, p. 560, and JUDGMENTS, n ENCYCLOPAEDIA OF PLEAD-
ING AND PRACTICE.
I. OFFER TO CONFESS JUDGMENT.
1. Notice of Offer.
Form No. 6021.'
To John Doe: You will take notice that on the twenty-fourth day
of November, A. D. i897, at ten o'clock in the forenoon, or as soon
thereafter as the matter may be taken up and heard, in the Sedgwick
District Court in the city of Wichita, county of Sedgwick, state of
Kansas, I will offer to confess judgment in favor of you for the sum
of three hundred dollars on a claim you have against me for medical
services rendered. Yours, etc.,
Richard Roe.
Dated this third day of November, A. D. i87.
(Proof of service.}*
2. The Offer.
Form No. 6o22. 3
State of Kansas, ) In the District Court in and for the county
Sedgwick County. J ' and state aforesaid.
John Doe )
against > Offer to Confess Judgment.
Richard Roe. )
The above named Richard Roe, this twenty-fourth day of Noi>ember,
iS97, pursuant to a notice heretofore, to wit, on the fifth day of
1. Kansas. 2 Gen. Stat. (1897), c. not if it had so specified it would have
95, 447. Like forms may be drawn been within the statute,
for use in jurisdictions in which similar A notice which does not specify when
statutes exist. Consult list of statutes the answer containing the offer will be
cited infra, note 2, p. 48. filed was held to be insufficient. Max-
Kentucky. In Maxwell v. Dudley, well v. Dudley, 13 Bush (Ky.) 404.
13 Bush (Ky.) 404, it appears that on 2. Proof of Service. For forms of ac-
the day on which the answer was filed, knowledgments of service or affidavits
but whether before or after is not of service consult the title SERVICE OF
apparent, defendant appellant caused WRITS AND PAPERS.
the following notice to be served upon 3. Kansas. 2 Gen. Stat. (1897), c.
plaintiff appellee: " The plaintiff is 95, 447. Like forms may be drawn
notified that the defendant will allow under similar statutes in other juris-
judgment to be taken against him for dictions. Consult list of statutes cited
the sum of fjj.oo. E. //. Maxwell, by infra, note 2, p. 48.
Stevenson & O'ffara, Att'ys. September Under Iowa Code (1897), 3818, an
nth, 1876." This notice was defective offer to confess judgment maybe made
in not specifying when the offer would orally. Barlow v. Buckingham, 68
be made, and it is doubtful whether or Iowa 169.
47 Volume 5.
6022.
CONFESSION OF JUDGMENT.
6022.
November, iSOT, duly served upon the above named John Doe, hereby
in open court offers to confess judgment in favor of the said John
Doe for the sum of three hundred and fifteen dollars, together with
costs that have accrued and may accrue, 1 upon a claim of four hundred
dollars, which the said John Doe has against the said defendant for
goods, wares and merchandise sold and delivered by the said John Doe to
the said Richard Roe.
Richard Roe.
II. CONFESSION. 2
Precedents. In Chicago, etc., R. Co.
v. Townsdin, 45 Kan. 771, the defend-
ant, in accordance with 2 Kan. Gen.
Stat. (1897), g 447, offered in open court
to confess judgment, making the offer
in writing, which, omitting the title,
was as follows: " Now comes the above
named appellee and offers in writing to
allow judgment to be taken against it
for 206.23, with accrued costs. F. W.
Sturgcs, Attorney for Appellee."
In Wichita, etc., R. Co. v. Beebe, 38
Kan. 427, the offer to confess judgment,
omitting the formal parts, was as fol-
lows: " Now comes the defendant rail-
road company, by Houston &> Bentley, its
attorneys, and offers in court to confess
judgment in the above cause for the
sum of two hundred and thirteen and one
one-hundredth dollars, and for the costs
of this action to date. Houston & Bent-
ley, Defendant's Attorneys."
Necessity for Notice. Under 2 Kan.
Gen. Stat. (1897), c. 95, both 445 and
447 require notice of some kind to be
given to plaintiff, in the one case, of
the offer to allow judgment; in the other
case, of the offer to confess judgment.
Under the first section, a written offer
must be served upon the plaintiff to
render him liable for costs; under the
latter section, plaintiff must either be
present in court when the offer is made
or he must have notice thereof to render
him liable for costs. If he is present in
court and the attention of the court is
called to the offer at the time it is
made, that will be sufficient, but it will
not be sufficient, even if plaintiff is
present in court, to file a written offer
with the clerk of the court without
calling the attention of the court, or the
plaintiff, or his attorney. Van Bentham
v. Osage County, 49 Kan. 30.
Must be made in court, either when the
plaintiff is present or at a time when
he has been notified that it will be
made. So held under Kentucky statute
in Maxwell v. Dudley, 13 Bush (Ky.) 403.
1. Must Embrace Costs. Harter v
Comstock, ii Ind. 527. An offer in
writing to confess judgment for a cer-
tain sum with costs accrued to the
present time, made before trial in a
pending action, Is sufficient. Rose v.
Grinstead, 53 Ind. 203; Holland v.
Pugh, 16 Ind. 23; Petrosky v. Flana-
gan, 38 Minn. 27.
In Iowa, however, this does not seem
to be necessary. An offer by defendant
"to confess judgment against himself
in favor of plaintiff for the sum of two
hundred and sixteen dollars " was held
to be sufficient, for the reason that an
offer of this character in a pending case
carries with it as incident, if accepted,
a liability for all costs accrued in the
case up to the time the offer is made.
Manning v. Irish, 47 Iowa 650.
Offer to Confess in Part. After action
brought, defendant may offer in court
to confess judgment for part of the
amount claimed or part of the causes
involved.
Kansas. Gen. Stat. (1889), 4627.
For similar provisions consult the list of
statutes cited infra, note 2, p. 48.
Offer to confess part of payments de-
manded may be made, irr Kentucky,
when the only matter in dispute is the
amount of recovery to which the plain-
tiff is entitled. Maxwell v. Dudley, 13
Bush (Ky.)403.
2. Statutory provisions relating to con-
fessions of judgments exist in the fol-
lowing jurisdictions:
Arizona. Rev. Stat. (1887), 802,
803, 1444, 1445.
Arkansas. Sand. & H. Dig. (1894),
4379- 5872, 5873, 5906.
California. Code Civ. Proc. (1897),
112, subs. 6, g 889, 1132-1135.
Connecticut. Gen. Stat. (1888),
663, 1058.
Delaware. Laws (1893), p. 795, c.
106, 32, p. 811, c. no, 14.
District of Columbia. Comp. Stat.
(1894), c. 34, 13.
48
Volume 5.
6023.
CONFESSION OF JUDGMENT.
6023.
1. In General.
a. Before Action Commenced.
(1) IN COURTS OF RECORD.
(a) Generally.
Form No. 6023.'
(Venue, title of court and cause. ,) 2
I, the above named Richard Roe? do hereby confess judgment in
Florida. Rev. Stat. (1892;, $ 1178,
1609, subs. 6, 1623, 1634.
Georgia. 2 Code (1895), 5359, 5360.
Idaho. Rev. Stat. (1887), 3851,
subs. 6, g 4725, 5061-5063.
Illinois. Starr & C. Anno. Stat.
(1896), p. 3083, par. 66.
Indiana. Homer's Stat. (1896),
515. 587, 588, 1490.
Iowa. Anno. Code (1897), g 3813,
3815, 3817, 3818,4536.
Kansas. 2 Gen. Stat. (1897), c. 95,
399-405, 447; Gen. Stat. (1889),
4498-4501, 4504, 4851.
Kentucky. Bullitt's Civ. Code 1895),
382, 640.
Maryland. Pub. Gen. Laws (1888),
art. 17, 50, art. 52, 33.
Massachusetts. Pub. Stat. (1882), c.
167, j5 65, c. 193, 1-9.
Michigan. How. Anno. Stat. (1882),
63 16, 7662.
Minnesota. Stat. (1894), 1383,
4959, subs. 6, 5019-5021, 6077-6082.
Mississippi. Anno. Code (1892), g
747, 753-
Missouri. Rev. Stat. (1889), g 2230-
2232, 6273, 6274; Burns' Anno. Pr. Code
(1896), 605.
Montana. Code Civ. Proc. (1895),
1620, 2041-2043.
Nebraska. Comp. Stat. (1897),
6013, 6015, 6016.
Nevada. Gen. Stat. (1885), g 3382,
3383, 3531, subs. 7, 3534.
New Hampshire. Pub. Stat. (1891),
c. 223, 2, c. 247, 16, 17.
New Jersey. Gen. Stat. (1895), pp.
172-174, I ft seq., p. 1873, 43, p. 2534,
I-I2-
New York. Code Civ. Proc. (1891),
g 1274, 3010-3012 (Birds. Rev. Stat.
(1896), pp. 1738-1740, 72-77, p. 1803,
154-156).
North Carolina. Code (1883), 570,
571.
North Dakota. Rev. Codes (1895),
6130-6132, 6701.
5 E. of F. P. 4. 49
Ohio. Bates' Anno. Stat. (1897),
588, 5321, 5325.
Oklahoma. Stat. (1893), 4293-
4298.
Oregon. Hill's Anno. Laws (1892),
250-256.
Pennsylvania. Bright. Pur. Dig.
(1894), p. 1093, I, p. 1740, 72,
subs. 3.
South Carolina. Code Civ. Proc.
(1893), 71, subs. 8, 383-385-
South Dakota. Dak. Comp. Laws
(1887), 5537-5539, 6102.
Tennessee. Code (1896), 4705-
4707, 7214.
Texas. Rev. Stat. (1895), arts. 1348-
1352, 1648-1650.
Utah. Rev. Stat. (1898), 3213-
3216, 3723.
Vermont. Stat. (1894), 829-831,
1448.
Virginia. Code (1887), 3283.
Washington. Ballinger's Anno.
Codes and Stat. (1897), 4681, subs. 7,
5093-5099.
West Virginia. Code (1887), p. 787,
43-
Wisconsin. Sanb. & B. Anno. Stat.
(1889), 2895, 2896, 3657.
Wyoming. Rev. Stat. (1887),
2668-2672, 3483-3485.
Amendment. Such irregularity in a
confession of judgment as might be
corrected by amendment in cases of
ordinary judgments is subject to
amendment. Merchants Nat. Bank
v. Newton Cotton Mills, 115 N. Car.
507.
1. Consult list of statutes cited supra,
note 2, p. 48.
2. Venue, title of court and cause must
be so stated as to conform to the prac-
tice in the particular jurisdiction. For
statement of these formal parts consult
the titles ANSWERS IN CODE PLEADING;
COMPLAINTS; DECLARATIONS; PLEAS.
3. A clerk of court may confess judg-
ment against himself in favor of his
Volume 5.
6023.
CONFESSION OF JUDGMENT.
6023.
favor of the above named John Doe for the sum of five hundred dollars, 1
and do hereby authorize (name of proper official}* of the (name of courf)
court, in and for the county of (name of county), and state of (name of
state), to enter judgment for said sum against me, the said Richard Roe,
and in favor of him the ^\^. John Doe. This confession of judgment
is for money justly due (or to become due)* to him the said John Doe,
creditors when he acts in a purely
ministerial capacity. Smith v. Mayo,
83 Va. 910.
An infant cannot confess judgment in
his own name. Soper v. Fry, 37 Mich.
236; Bennett v. Davis, 6 Cow. (N. Y.)
393; Knox v. Flack, 22 Pa. St. 337.
The managing agent of a corporation
has authority to confess judgment
against it. Sharp v. Danville, etc., R.
Co., 106 N. Car. 308.
A married woman may confess judg-
ment upon a contract relating to her
sale of separate estate, or upon other
contracts which she may legally make.
Tanner v. State, 92 Ala. 53; Koechling
v. Henkel, 144 Pa. St. 215; Birds. Rev.
Stat. N. Y. (1896), p. 1738, 72; N. Y.
Code Civ. Proc., 1273, as amended
Laws (1877), c. 416. See also infra,
Form No. 6046 and annotations thereto.
A partner cannot confess judgment
for his copartner. Soper v. Fry, 37
Mich. 236; Fairbanks v. Kraft, 43 Mo.
App. 121 ; McCleery v. Thompson, 130
Pa. St. 443.
A public officer may confess judgment
for an amount for which he is liable to
be sued as such officer. Gere v. Cay-
uga County, 7 How. Pr. (N. Y. Su-
preme Ct. ) 255.
The confession of one does not author-
ize a judgment against two. Clark v.
Holmes, I Dougl. (Mich.) 390.
One of several joint debtors cannot con-
fess judgment so as to bind those not
joining. Tripp v. Saunders, 59 How.
Pr. (N.Y. Supreme Ct.) 379; Ballinger
v. Sherron, 14 N. J. L. 144. But see N.
Y. Code Civ. Proc., 1278; Kantro-
witz v. Kulla, 20 Abb. N. Cas. (N. Y.
City Ct.) 321; Harbeck v. Pupin, 55
Hun (N. Y.) 335.
1. Judgment for a specific sum must be
authorized by the statement.
California. Code Civ. Proc. (1897),
1133. See also list of statutes cited
supra, note 2, p. 48.
2. Confession of judgment in the clerk's
office during vacation may be valid.
Weinges v. Cash, 15 S. Car. 44. See
also list of statutes cited supra, note
2, p. 48.
A judgment maybe confessed either
in court or in the clerk's office. Vir-
ginia Valley Ins. Co. v. Barley, 16 Gratt.
(Va.) 363.
3. Only for money due or to become due
or to secure against contingent liability on
behalf of defendant can judgment be
confessed.
Iowa. Code (1897), 3814. See also
list of statutes cited supra, note 2,
P- 48.
Forms for confession of judgment for
money to become due may easily be
drawn by so altering the language of
the forms of confession of judgment
for money due as to adapt the wording
to the facts of the particular case.
Forms of confession of judgment to
secure against contingent liability are
given infra, Form No. 6036.
"Justly Due." The statement must
state that the amount is justly due or
to become due. Edgar v. Greer, 7
Iowa 139. See also list of statutes
cited supra, note 2, p. 48.
The statute does not require that the
confession must state in terms that the
sum is justly due. The particular facts
must be set forth in such a manner as
to show not only a just debt, but the
amount thereof; that being done, an
additional averment in general terms of
the justice of the- debt and its amount
is not required. Claflin v. Dodson, in
Mo. 200, following Lanning v. Carpen-
ter, 20 N. Y. 459.
A statement which fails either to
allege or to set out facts which would
show that the amount for which judg-
ment is confessed was still justly due
is insufficient. Smith z: Smith, 117 N.
Car. 351.
A confession which states the amount
for which the judgment is confessed
and states the same to be due on a cer-
tain promissory note due and payable
on a day named, and that the consid-
eration of the same was an article sold
and delivered, sufficiently alleges that
the amount " is justly due." Mer-
chants Nat. Bank v. Newton Cotton
Mills, 115 N. Car. 507.
Due from Judgment Debtor. A state-
ment that the confession of judgment
is for money " due to the said plaintiff,"
50
Volume 5.
6023.
CONFESSION OF JUDGMENT.
6023.
arising from the following facts, viz: {Here set out the facts out of which
the indebtedness arose.) 1
Richard Roe?
(Venue. ^
I, Richard Roe, being duly sworn, say, that I am the person whose
name is subscribed to and who executed the above statement and con-
fession, and that the matters of fact set forth in said statement and
confession are true. 4
Richard Roe.
(Jurat. ) 5
(Venue, title of court and cause.) 6
but not stating that the money was due
from the judgment debtor, is insuffi-
cient. Citizens' Nat. Bank v. Allison,
37 Hun (N. Y.) 137.
1. The Statement. Must be in writing
and state concisely the facts in such
terms as will make it known to the
common understanding how the indebt-
edness arose. Stern v. Mayer, 19 Mo.
App. 511; Edgar v. Greer, 7 Iowa 139.
See also list of statutes cited supra,
note 2, p. 48.
Must be filed with the clerk of the court
in which the judgment is to be entered.
California. Code Civ. Proc. (1897),
1134. See also list of statutes cited
supra, note 2, p. 48, for similar statutory
provisions in Idaho, Minnesota, Missouri,
Montana, Nevada, South Carolina, Utah,
and other states.
Object of Statutory Requirement. It
is not the object of the statutes, how-
ever, to compel the debtor to state suf-
ficient of the transaction to enable other
creditors to form an opinion, from the
facts stated, as to the integrity of the
debtor in confessing a judgment, but
all that is required is to state facts suf-
ficient to enable them to investigate the
transaction and form their opinion of
the honesty of the judgment from the
facts thus ascertained. Atwater v.
Manchester Sav. Bank, 45 Minn. 351,
following McDowell v. Daniels, 38 Barb.
(K. Y.) 143; Harrison v. Gibbons, 71
N. Y. 58; Kern v Chalfant, 7 Minn.
487; Cleveland Co-operative Stove Co.
v. Douglas. 27 Minn. 177; Wells v.
Gieseke, 27 Minn. 478.
2. Statement should be signed by the
defendant.
California. Code Civ. Proc. (1897),
1133. See also list of statutes cited
sufra, note 2, p. 48.
The statement must be signed by the
parties personally against whom the
judgment by confession is to be ren-
dered. A statement signed by the
attorneys of such persons is not suffi-
cient. Reynolds v. Lincoln, 71 Cal.
184.
Signing the affidavit of verification has
been held to be a sufficient signing of
the statement for judgment by confes-
sion. Kern v. Chalfant, 7 Minn. 487.
3. Venue of affidavits, generally, see
the title AFFIDAVITS, vol. i, p. ^\etseq.
4. The confession should be verified by
the oath of the defendant.
California. Code Civ. Proc. (1897),
1133. See also list of statutes cited
supra, note 2, p. 48.
A confession of judgment must strict-
ly pursue the statute, and the judgment
entered thereon without the sworn
statement required by law is void as to
creditors of the defendant not made
parties to the action. Bacon v. Ray-
bould, 4 Utah 357.
Insufficient Affidavit. An affidavit
that defendant " believes the confessed
statement is true " is insufficient. He
must swear positively to the truth of
the facts so far as they are within his
own knowledge. Ingram v. Robbins,
33 N. Y. 409, overruling Delaware v.
Ensign, 21 B'arb. (N. Y.) 85.
The confession must be acknowledged, in
some states, by the parties making the
same before some officer authorized to-
take acknowledgments of deeds.
Oregon. Hill's Anno. Laws (1892),
253-
Washington. Ballinger's Codes and
Stat. (1897), 5096.
But acknowledgment is not required
when the parties or their attorneys ap-
pear in court or before the clerk in va-
cation.
Oregon. Hill's Anno. Laws (1892),
253-
6. Jurat of affidavits, generally, see
the title AFFIDAVITS, vol. i, p. 560 etseq~
6. See supra, note 2, p. 49.
51
Volume 5.
6024. CONFESSION OF JUDGMENT. 6024.
{Itemized statement of disbursements^
I, Oliver Ellsworth, being duly sworn, say, that I am (one of) the
attorney(j) for the sa\6.John Doe above named, and that the disburse-
ments above mentioned have been made, or will be necessarily paid
or incurred therein.
(Jurat. ,) 3 Oliver Ellsworth.
(V) Illustrations.
aa. UPON ACCOUNT.
Form No. 6024.*
In the District Court in and for Harrison County, Iowa.
John Doe, plaintiff, )
against V Confession of Judgment.
Richard Roe, defendant. )
I, Richard Roe, of Harrison county, Iowa, defendant above named,
do hereby confess that I am justly indebted to John Doe of said Har-
rison county, state of Iowa, plaintiff above named, in the sum of five
hundred dollars; and I do hereby authorize the clerk of the District
Court in and for said county and state to enter a judgment in said
court in favor of the said John Doe and against me, said Richard Roe,
for the sum oifive hundred dollars, with interest and costs.*
This confession of judgment is for a debt justly due and owing
from me to the plaintiff for goods, wares and merchandises, being
groceries, dry goods, salt, calico, muslin, molasses, sugar, and other
articles sold and delivered by them to me at various times within the
last two years, as per schedule annexed to this statement and made
a part thereof. 5
Dated at Logan, Iowa, the ninth day of February, i898.
Richard Roe.
State of Iowa, \ gg
Harrison County. )
Richard Roe, being first duly sworn, deposes and says, that he is
the person named in and who made and subscribed to the foregoing
confession of judgment; that he has read the same and knows the
contents thereof, and that the same and the statements therein con-
.tained are true.
Richard Roe.
Subscribed in my presence and sworn to before me by Richard Roe,
this ninth day of February, iS98.
(SEAL) Norton Porter, Notary Public.
1. Statement of disbursements, follow- Clements v. Gerow, i Abb. App. Dec.
ing the practice in Minnesota and New (N. Y.) 370, reversing 30 Barb. (N. Y.)
York, consult Forms Nos. 6031, 6034, 325.
infra. Another form of statement for confess-
2. See supra, note 3, p. 51. ing judgment upon an account may be
8. See supra, note 5, p. 51. as follows: (Commencing as in Form
4. Iowa. Code (1897), 3813 et seq. No. 6024, and continuing to*) "This con-
5. This statement was upheld in fession of judgment is for a debt justly
52 Volume 5.
6025.
CONFESSION OF JUDGMENT.
6026.
Form No. 6025.'
(Miss. Anno. Code (1892), 753.)
The State of Mississippi, } In the Circuit Court of said county, tenth
De Soto County. j day of December, A. D. i807.
John Doe states, on oath, that Richard Roe is justly indebted to
him for the amount of sixty dollars on an instrument of writing in the
following words and figures, viz: (Here set out a copy of the same), [and
(in case of indorsement say) indorsed as follows: (Here copy the indorse-
ment}] ; (or on open account, of which a copy is hereunto attached*), which
remains due and unpaid, and that said sum of money is not due or
claimed upon a fraudulent or usurious consideration.
John Doe.
Sworn to and subscribed the tenth day of December ; A. D. i897?
before me, Calvin Clark, Clerk.
I do hereby acknowledge myself indebted to the said John Doe irr
the sum of sixty dollars, which includes interest up to theyfr^/day of
the next term of the said Circuit Court; and I give my consent for
judgment to be rendered against me in favor of said John Doe at the
next term of the said Circuit Court for said amount, and all legal
costs accruing thereon, [with stay of execution (if any) until (as may
be agreed upon).~\
Richard Roe.
Taken and acknowledged the tenth day of December, A. D. i87 v
before me, Calvin Clark, Clerk^
bb. UPON NOTE.
Form No. 6026.*
In the Superior Court of the County of San Diego, State of
California.
due and owing from me to the said
plaintiff for the following causes:
1. I have received from the said
plaintiff, for my benefit, the following
money, goods and services, of the value
and at the times stated as follows:
1897.
une i. Wheat delivered at my
store in Logan 4.02 12
July 6. Barrels delivered at
Logan 124 25
" /<?. Flour delivered at Lo-
gan 305 oo
Aug. to. Cash jo oo
" 20. Transportation of my
goods from Wood-
bine to Logan 37 &3
2. I have paid or delivered to the
plaintiff, on account thereof, the follow-
ing moneys, or goods, of the value and
at the times stated as follows:
1897.
Aug. 18. Cash 527 oo
Oct. to. Groceries q2 oo"
(Signed, dated and verified as in Form
No. 6024!)
The omission of the schedule referred
to in the statement as being annexed
thereto and made a part of the same
does not invalidate the judgment ren-
dered upon the confession. So held in
Clements v. Gerow, i Abb. App. Dec.
(N. Y.) 370, reversing 30 Barb. (N. Y.)
325-
1. Mississippi. Anno. Code (1892),
753- This section provides that if the
evidence of the debt be in writing, the
same shall be filed with said statement,
and if not in writing, then a copy of
the open account shall be filed, and the
party indebted shall sign before the
clerk an acknowledgment, written upon
or annexed to said statement, to the
effect as given in the text.
2. California. Code Civ. Proc.(i8g7),
1133. See also list of statutes cited
supra, note 2, p. 48.
Another form of statement for confes-
53
Volume 5.
6026.
CONFESSION OF JUDGMENT.
6026.
James E. Corbett, plaintiff, }
against > Confession of Judgment without Action.
Noel Davenport, defendant. )
Noel Davenport, the defendant in the above entitled action, does
hereby confess judgment therein in favor of James E. Corbett, the
plaintiff in the said action, for the sum of ten hundred and thirty-seven
and fifty-five one-hundredths dollars, and authorizes judgment to be
entered therefor against him with six per cent, interest thereon from
this date.
This confession of judgment is for a debt justly due to the said
plaintiff, arising upon the following facts, to wit:* The said defend-
ant, on the fifteenth day of September, i&71, made, executed and deliv-
ered to the said plaintiff his certain promissory note of that date for
the sum of ten hundred and thirty-seven and fifty-five one-hundredths
dollars, due and payable one year after date, said note having been
made, executed and delivered as aforesaid to secure the payment of
the purchase price of certain goods, to wit, one thousand bushels of
wheat, which said wheat was sold and delivered by said plaintiff to
said defendant on the said fifteenth day of September, I87.7. 1 No part
sion of judgment on note may be as
follows: (Commencing as in Form No.
6026, and continuing to*) " i. (State the
consideration of the note as fully as if
judgment were confessed upon that instead
of upon the note). 2. On the fifteenth
day of September, 1877, in consideration
whereof, I made to the plaintiff my
promissory note for the sum of ten
hundred and thirty-seven and fifty-five
one-hundredths dollars, payable on the
fifteenth day of September, 1872."
(Dated, signed and verified as in form
No. 6026.)
By an Indorser to his Indorsee. (Com-
mencing as in form No. 6026, and con-
tinuing down to*) " i. In consideration
of one thousand dollars guarantee com-
mission paid to me by the said plaintiff
on the fifth day of November, 1877, I
indorsed to him before its maturity a
promissory note made by one Samuel
Short on the fifteenth day of September,
1877, at the city and county of San Fran-
cisco, state of California, for the sum of
len hundred and thirty-seven and fifty.
Jive one-hundredths dollars, payable to
my order on the fifteenth day of Sep-
tember, 187.2. 2. The same has been
dishonored." (Signed, dated and veri-
fied as in Form No. 6026.)
By Indorser to a Remote Indorsee.
{Commencing as in Form No. 6026, and
continuing down to*) " I. I indorsed and
negotiated before its maturity a certain
bill of exchange made by one Samuel
Short on the fifteenth day of September,
1877, at the city and county of San
Francisco, state of California, requiring
oneJoAn Smith to pay to my order ten
hundred and thirty-seven and fifty-five
one-hundredths dollars three days after
sight thereof. 2. The same was after-
ward transferred to the plaintiff. 3.
The same has been dishonored."
(Signed, dated and verified as in form
No. 6026.)
1. Must State Facts of the Indebted-
ness. In Pond v. Davenport, 44 Cal.
482, upon the facts of which case this
statement is based, the statement ac-
tually used therein was held to be sub-
stantially defective in omitting to set
forth the consideration of the note and
the facts out of which the indebtedness
arose. The court held that it was not
sufficient in such a statement to merely
say that the promissory note was given
for money due to the plaintiff from the
defendant.
Sufficiency of Statement on Promissory
Note. If the debt is a note and it was
given for money loaned, it is enough
to say so, describing the note. Mechan-
ics Bank v. Mayer, 93 Mo. 421; Hardw.
Foster, 98 Mo. 312. The following
statements have been held to be suffi-
cient :
"On one promissory note given by
me to the said Lanning on the eighth
day of December, 1854, for one hundred
dollars borrowed money on which is
indorsed eleven dollars and sixty cents,
said note due when given. Also, one
promissory note of three hundred and
forty dollars made by me and dated the
54
Volume 5.
6027.
CONFESSION OF JUDGMENT.
6027.
ss.
of said note or interest thereon has been paid, and the whole thereof,
together with interest thereon, 1 is now justly due and owing by said
defendant to said plaintiff.
Dated the nineteenth day of September, i87#.
Noel Davenport.
State of California, \
County of San Diego. \
Noel Davenport, being duly sworn, says, that he is the person who
signed the above statement, and that he is indebted to the said James
E. Corbett in the sum of ten hundred and thirty-seven and fifty one-hun-
dredths dollars, in said statement mentioned, and that the facts stated
in the above confession and statement are true.
Noel Davenport.
Subscribed and sworn to before me this nineteenth day of September,
1 872.
(SEAL) G. N. Hitchcock, Notary Public.
Form No. 6027.*
(Precedent in Jarosh v. Easton, 57 Iowa 569.)*
James H. Easton ^
v. I Confession of judgment in Circuit Court,
John Kavorek, f Winneshiek county, Iowa.
Jean Suchan, Def 'ts. J
We, John Kavorek and Jean Suchan of Blank township, in the
fendant the payment of the sum of
two thousand dollars, for which the de-
fendant has given to the plaintiff two
notes, made by said defendant, of one
thousand dollars each; one payable in
sixty days from the twelfth of November
aforesaid, and the other in ninety days
from said date." Ely v. Cooke, 28 N.
Y. 365.
But compare the insufficient state-
ments discussed in the following cases :
Pond v. Davenport, 44 Cal. 486; Ken-
nedy v. Lowe, 9 Iowa 580; Edgar v.
Greer, 7 Iowa 136; Butts v. Schieffelin,
5 Civ. Proc. Rep. (N. Y. Supreme Ct.)
415; Chappel v. Chappel, 12 N. Y. 215.
1. Confession for a greater rate of in-
terest than the note upon which it is
based bears will not invalidate the
judgment in the absence of fraud
shown. Merchants Nat. Bankz/. New-
ton Cotton Mills, 115 N. Car. 507.
2. Iowa. Code (1897), g 3815. See
also list of statutes cited supra, note
2, p. 48.
Cases on appeal from an award made by
commissioners in assessing damages
for right of way are within the provi-
sions of Iowa Code (1897), 3818. Har-
rison v. Iowa Midland R. Co., 36 Iowa
323-
3. Signed by One as Surety. In this
seventeenth day of October, i8j^, due
when given, and now owned by said
Lannins, the same being given for bor-
rowed money." Lanningz/. Carpenter,
20 N. Y. 448.
" For a debt arising on a promissory
note made by the defendant to plain-
tiff, and upon which there is this day
due the sum of seven hundred and eighty-
two dollars and forty-seven cents,
together with eighty dollars &nA forty-
one cents now due the plaintiff from the
defendants, and costs in an action
brought against the defendants by the
plaintiff on said promissory note in
supreme court, which suit is now dis-
continued by the plaintiff upon this
confession of judgment to him by the
defendants. And we hereby state that
the sum hereby by us confessed is
justly due to the said plaintiff, without
any fraud whatever." Freligh v.
Brink, 22 N. Y. 418.
"The defendant has from time to
time borrowed of the plaintiff money,
and there is now due to the plaintiff
from the defendant the sum of $/jroo
for cash borrowed, for which the plain-
tiff holds the note of defendant, bearing
date the twelfth day of November , iSjo,
and payable six months after date.
The plaintiff has assumed for the de-
55
Volume 5.
6027. CONFESSION OF JUDGMENT. 6027.
county of Winneshiek, and State of Iowa, defendants above named,
do hereby confess that we are jointly and severally justly indebted
to James H. Easton of Decorah, Iowa, plaintiff above named, in the
sum of one hundred and forty (and $15 attorney's fees as provided for
in said note) dollars, with interest at ten per cent, per annum, from
the 22d day of February, i878, and we do hereby authorize the clerk
of the Circuit Court of said county and state to enter a judgment in
said court in favor of said plaintiff, and against us and each of us as
defendants, for the sum of one hundred and forty (and 15 attorney's
fees and $3.50 costs) dollars, with interest at ten per cent, per annum,
from the &/day of February, A. D. i87#, and costs. It is stipulated
and agreed that the interest on said judgment shall be paid semi-
annually, so long as the said judgment remains unpaid, and if default
be made in the payment of said interest, or any part thereof, at the
time the same becomes due, then at any time thereafter on applica-
tion of the plaintiff to the clerk therefor, execution shall immediately
issue for the whole amount of said judgment, principal, interest and
costs.
This confession of judgment is for a debt justly owing and now due
to said plaintiff, and the following is a concise and true statement of
the facts, out of which the said debt arose, to wit: On the 22d day of
February, iS78, at our request, James H. Easton, the plaintiff herein,
loaned us the sum of one hundred and forty dollars, for which we did
on that day execute to said plaintiff a promissory note for the whole
amount, payable November 15th, i&78, and interest atte# per cent, per
annum, payable quarterly. Said note is now unpaid and this judgment
is confessed to secure payment of said note and interest, 15 attor-
ney's fees and 3.50 costs, and we further state that the said sum,
above confessed, is justly owing and now due to said plaintiff from
us, and each of us, without any fraud or illegal consideration what-
ever. And it is further understood that execution is not to issue on
this judgment until the 1st day of November, A. D. i87#, provided that
default be not made in the payment of interest when due, as above
provided.
Dated Spillville, Iowa, December 26, i878.
John Kavorek.
Jean Suchan.
State of Iowa, \
Winneshiek Co. \
John Kavorek, and Jean Suchan, being first duly sworn, depose and
say, each for himself, that he is the person named in, and who made
and subscribed to, the foregoing confession of judgment; that they
have read the same and know the contents thereof, and that the same
and statements therein contained are true.
John Kavorek.
Jean Suchan.
case the confession was signed also by against the principals Kavorek and
one Albert Jarosh, as surety, who also Suchan, for the reason that Jarosh was
acknowledged and verified the same, only bound as surety for the payment
The court held, however, that the cog- of the judgment, not a word appearing
novit did not authorize judgment to be in the confession to authorize the entry
entered against Jarosh, but merely of a judgment against him.
56 Volume 5.
6028. CONFESSION OF JUDGMENT. 6028.
Subscribed in my presence and sworn to before me by John Kavorek
and Jean Suchan this 26th day of December, A. D. i87.
[(SEAL)] O. Kalper, Notary Public.
Form No. 6028.'
(Precedent in Burnham v. Blank, 49 Mo. App. 57.)
In the Circuit Court of Jackson County, Missouri, at Kansas City.
Mary Samter, Plaintiff, \
against V No. 10860.
Max Blank, Defendant. )
First. The amount for which judgment may be rendered against
me in favor of Mary Samter is $500, and interest accrued thereon,
$12.45, making in all $512.45, and I authorize judgment to be
entered against me for $512.45 in the above cause.
Second. The facts out of which the above indebtedness arose are
as follows: I, Max Blank, being in the mercantile business, at num-
ber 1428 East Eighteenth Street, Kansas City, Missouri, borrowed
from Mary Samter the sum of $500 to pay certain liabilities I had
incurred in said business; that the said sum of $500 was used in pay-
ing for goods that were purchased and used by me in said business
at the above number; that at the time I borrowed said sum of $500
from Mary Samter I executed and delivered to her five $100 notes,
due in one, two, three, four and five months from their date, viz., Sep-
tember i, 1 &87; that none of said notes have been paid by me, or any
part of said sum of $500, and that the same is now justly due the
said Mary Samter ; that all of said notes are not now due; that said
notes bear interest from date at the rate of ten per cent, per annum. 2
Max Blank.
Witness: Eugene Schilling.
1. Missouri. Rev. Stat. (1889), of Philadelphia, state of Pennsylvania,
2229-2231. See also list of statutes in the sum of $1^500 on account of my
cited supra, note 2, p. 48. certain negotiable promissory note, by
2. This statement was sustained me made in my firm name to the order
against objection that it did not state of Lez'i Stern, and indorsed by A. Mayer
concisely the manner in which the in- &* Son for my accommodation, and
debtedness arose, in that it did not negotiated and delivered by me for
show that the sum confessed was justly value before maturity to said Levi
due, that there was no description of the Stern.
note on which the judgment was con- The facts out of which this indebted-
fessed, that there was no allegation that ness arose are as follows: On January
plaintiff paid any consideration for it, _?/, 1895, I made and executed my
that the note was not filled with the promissory note under the firm name
statement, and that the amount of the of J. I. Mayer &* Co., by which I prom-
judgment confessed was in excess of ised to pay, ninety days after date, to
the amount due according to the state- the order of Levi Stern, 1^00 at our
ment. office, goo Olive street, St. Louis; that
In Stern v. Mayer, 19 Mo. App. 513, thereupon said note was indorsed by
the statement was as follows: A. Mayer dr> Son for my accommoda-
" State of Missouri, ) tion, and by me delivered to said Levi
City of St. Louis. J Stern for money which he then and
Whereas, !,_/. /. Maver, of the city there gave me for said note as a loan
of St. Louis, doing business under the for said sum of $7,500. And desiring
name and style of J. /. Mayer <5r" Co., to secure the payment of said indebt-
am indebted to Levi Stern, of the city edness, I do hereby authorize the circuit
57 Volume 5.
6029. CONFESSION OF JUDGMENT. 6029.
State of Nebraska, )
County of Saline. \
Max Blank, being duly sworn, on his oath deposes and says : That
the facts set forth in the foregoing statement are true.
Max Blank.
Subscribed and sworn to before me this third day of December,
A. D. 1 887.
(SEAL) Eugene Schilling, Notary Public.
My commission expires October 26, i892.
(Indorsement. ) x
cc. UPON SEALED INSTRUMENT.
Form No. 6029.*
(Precedent in Uzzle v. Vinson, in N. Car. 138.)
In the Superior Court Johnston County.
Esther Vinson )
v. > Judgment by Confession.
A. B. Vinson. }
I, A. B. Vinson, hereby confess judgment in favor of the above
named plaintiff for the sum of twenty-two hundred and fifty ($50)
dollars, and authorize the entry of judgment therefor against me,
with interest at six per cent, from November 2, i876. This con-
fession is for the amount due on a bond under seal executed by the
defendant to plaintiff, dated November 1, i876>, and the defendant A.
B. Vinson maketh oath 3
court, of the city of St. Louis, to enter Confession before Clerk of the Superior
judgment against me for the said sum Court. The following is the ordinary
of $7,500, which sum is justly due and North Carolina form of confession of
owing according to the tenor and effect judgment before a clerk of the superior
of said note herein described, to Levi court:
Stern, and costs in favor of said Levi "Mecklenburg County Clerk of
Stern. Jacob /. Mayer. Superior Court.
,/fvfVr^C' ? d ? g S ,T 0n L'- Sa P S hn . D e (Before Calvin Clark,
that he believes the facts set forth in the against > ri er u c S C
foregoing statement to be true, and the Richard Roe. }
same are true, and that the debt herein I. I, Richard Roe, defendant in the
mentioned is bona fide and for a fair above entitled case, hereby confess
and valuable consideration as herein judgment in favor of John Doe, plaintiff
stated. Jacob I. Mayer. in the above entitled case, for the sum
Subscribed and sworn to," etc. of three hundred dollars, and do hereby
1. Indorsement of filing upon the con- authorize the entry of judgment for
fession was: "No. 10,860. Mary Samter such sum against me on this ninth day
v.Max Blank. Confession of Judgment, of February, i8o<y.
Filed December 5, ri&j. L. F. McCoy, II. This confession of judgment is
Clerk." for a debt now justly due from me,
2. North Carolina. Code (1883), said defendant, to the said plaintiff,
571. See also list of statutes cited supra, arising from the following facts: (Here
note 2, p. 48. insert concise and accurate statement of
3. The statement of indebtedness in this facts out of which the indebtedness arose);
confession was held to be a sufficient which said sum is now due to said
compliance with the statute describing plaintiff over and above all just de-
the manner of confessing judgments, mands that I, the said defendant, have
distinguishing Davidson v. Alexander, against him, the said plaintiff.
84 N. Car. 621; Davenport v. Leary, Richard Roe."
95 N. Car. 203. (Verification as in Form No. 6029.)
58 Volume 5.
6030.
CONFESSION OF JUDGMENT.
6030.
1. That said amount of $2250, with interest at six per cent, from
November 2, i876, is justly due by him to the plaintiff.
2. That said amount is due by him to the plaintiff on a bond under
seal for borrowed money due and payable November 2, i876.
A. B. Vinson.
North Carolina Johnston County.
A. B. Vinson being sworn, says that the facts set forth in the fore-
going confession are true.
A. B. Vinson.
Sworn to and subscribed before me, October 31, iB91.
W. S. Stevens, C. S. C.
dd. FOR GOODS SOLD.
Form No. 6030.'
In the District Court of the First Judicial District of the State of
Idaho, in and for the County of Shoshone.
John Doe, plaintiff, j
against > Confession of Judgment without Action.
Richard Roe, defendant. )
Richard Roe, of Murray, county of Shoshone, state of Idaho, defend-
ant in the above entitled action, does hereby confess judgment
In the justice's court, the confession of
judgment before a justice of the peace
in North Carolina follows the same
form used in confession before the
clerk of the superior court, substituting
the words "Justice's Court" for the
words " clerk of Superior Court" and
"J. P." for "C. S. C."
Authorizing Clerk to Enter Judgment.
If the confession does not contain
words expressly authorizing the clerk
to enter judgment, and the record
shows that the confession was sworn to
and filed and judgment thereon entered,
the filing is equivalent to an expressed
authority for its entry and sufficiently
conforms to the statute. Merchants
Nat. Bank v. Newton Cotton Mills, 115
N. Car. 507. In this case the confes-
sion of judgment was as follows:
" State of North Carolina County of
Catawba.
In the Superior Court.
The Merchants National Bank~\
of Richmond, Va.,
v.
The Newton Cotton Mills. J
The Newton Cotton Mills, by W. H.
Williams, president, being thereunto
duly authorized by the Newton Cotton
Mills, hereby confesses judgment in
favor of The Merchants National Bank
of Richmond, Va., the plaintiff above
named, for the sum of five thousand
three hundred and seventy-one dollars and
sixty cents, with interest at 8 per cent,
from July igth, i8gj. This confession
of judgment is to secure the plaintiff
the sum above named, which is due by
a certain promissory note made by the
Newton Cotton Mills to the firm of Heath,
Springs <Sr Co., and the said Heath,
Springs & Co. indorsed to the plaintiff
for value, which said note became due
and payable on the jQth day of July,
iSpj. That the consideration of this
note was for cotton sold and delivered
to the Newton Cotton Mills by Heath,
Springs & Co.
Newton Cotton Mills,
by W. H. Williams, President.
North Carolina Catawba County.
Before me, J. F. Herman, Clerk of
the Superior Court of Catawba County,
personally appeared W. H. Williams,
President of the Newton Cotton Mills,
who, being duly sworn, maketh oath
that the statement above signed by him
is true.
W. H. Williams.
Subscribed and sworn to before me
July jf, I80J. J. /'. Herman,
Clerk Superior Court.' 1
1. Idaho. Rev. Stat. (1887), 5061.
See also list of statutes cited supra,
note 2, p. 48.
59
Volume 5.
6030. CONFESSION OF JUDGMENT. 6030.
therein in favor of John Doe, of Murray, county of Shoshone, state
of Idaho, the plaintiff in said action, for the sum of five hundred
dollars in gold coin of the United States, and authorize judgment to be
entered therefor against him with six per cent, interest thereon
from this date.
This confession of judgment is for a debt justly due to the said
John Doe, plaintiff, arising from the following facts, to wit: The
said plaintiff, at divers and various dates and times in the year of
1 897, sold and delivered certain goods to said defendant, to wit: One
hundred sacks of flour, at one dollar and fifty cents per sack; six
hundred pounds of bacon, at twelve and one-half cents per pound; four
hundred pounds of sugar, at ten cents per pound, and upon such sales
there is now justly due and owing to the said plaintiff a balance
amounting to two hundred dollars. 1 Also the said plaintiff, on the
first day of February, i8#7, loaned to said defendant the sum of three
hundred dollars in gold coin of the United States, which said sum of
three hundred dollars is now justly due and owing to the said plain-
tiff from the said defendant.
Dated the ninth day of February, iS98.
Richard Roe, Defendant.
State of Idaho, \
County of Shoshone. j
Richard Roe, being duly sworn, says that he is the person who
signed the above statement and that he is indebted to the said John
Doe in the sum of five hundred dollars in gold coin of the United
States, in said statement mentioned; that there are no offsets to the
same, and that the facts stated in the above confession and state-
ment are true. That said confession is not made to defraud any
creditor of the defendant, but in good faith for a bona fide
indebtedness.
Richard Roe.
Subscribed and sworn to before me this ninth day of February, iS98.
(SEAL) Norton Porter, Notary Public.
1. Sufficiency of Statement for Goods The following statements have been
Sold. The requirement of "a concise held to be sufficient: That " the sum of
statement of the facts out of which the $500, being the amount of a bill of
debt arose" could never have been in- goods this day purchased of him the
tended to call for as much as a bill of said plaintiff by him the said defend-
particulars. Bryan v. Miller, 28 Mo. ant." Hoppock v. Donaldson, 12 How.
35; Schoolcraft v. Thompson, 9 How. Pr. (N. Y. Supreme Ct.) 141.
Pr. (N. Y. Supreme Ct.) 61. The That the judgment debtor "had
specification as to when the indebted- obtained" groceries, provisions, money,
ness arose may be indefinite, but a state- etc., to an amount stated, specifying in
ment otherwise sufficient will not be a general way the time when the in-
invalidated for this reason alone. Har- debtedness arose. Harrison v. Gib-
rison v. Gibbons, 71 N. Y. 62. Nor bons, 71 N. Y. 62.
need the statement aver in express That the indebtedness was for
terms to whom or by whom the goods "sundry articles of dry goods" and
were sold, where the words used plainly "a bill of groceries." without further
imply these facts. Read v. French, 28 detail as to the consideration of the
N. Y. 293. But a reasonably specific indebtedness. Daniels v. Claflin, 15
bill of goods showing the dates of sale Iowa 152.
should be given. Mechanics Bank v. That the indebtedness was for "grain
Mayer, 93 Mo. 421. purchased of the said plaintiff, W. H.
60 Volume 5.
6031.
CONFESSION OF JUDGMENT.
6031.
ee. FOR MONEY LOANED.
Form No. 6031.'
Supreme Court, Albany County.
John Doe, plaintiff,
against
Richard Roe^ defendant.
I, Richard Roe, the defendant above named, do hereby confess judg-
ment in favor of John Doe, plaintiff above named, for one thousand dol-
lars and authorize judgment to be taken against me for that sum with
costs. This confession of judgment is for a debt justly (to become)
due from me to the above plaintiff, said indebtedness arising upon the
following facts, to wit:* between the first day of March, iS93, and the
first day of October, i895, the plaintiff loaned and advanced me divers
and sundry sums of money which I agreed to repay him with inter-
est, and also did and performed work, labor and service in selling
merchandise upon commission and guaranteeing the amounts for the
same, and on the first day of October, iS95, there was an adjustment
of the accounts between said plaintiff and defendant concerning the
said matters and the sum of one thousand dollars was found due to
the former, which the latter agreed to pay with interest. 2
Richard Roe, defendant.
Healy, by the said Othniel Preston,
on or about the ist day of April, 185-6."
Healy v. Preston, 14 How. Pr. (N. Y.
Supreme Ct.) 21.
That the indebtedness arose for
11 goods sold and delivered " without
stating the time of sale, quantity, price
and value of the goods. Merchants
Nat. Bank v. Newton Cotton Mills,
115 N. Car. 507.
1. New York. Code Civ. Proc.,
1274 (Birds. Rev. Stat. (1896), p. 1738,
73). See also list of statutes cited
supra, note 2, p. 48.
Another form of statement of confession
of judgment for money loaned maybe
as follows: (Commencing as in Form No.
6031, and continuing to*) "i. On the
ninth day of February, 1897, at the city
of Albany, in the state of New York,
the said plaintiff loaned to me the sum
of $/,ooo, payable on demand with in-
terest. 2. On the fifth day oijuly,
1897, at the city of Albany, in the state
of New York, the said plaintiff loaned
to me the sum of $500 on the same
terms. 3. On the first day of September,
1897, I paid to the said plaintiff the sum
of $500 on account." (Signed, dated and
verified as in Form No. 6oj/.)
For Money Loaned, Not Yet Due.
(Commencing as in Form A r o. 6031, and
continuing down to*) " I. On the ninth
day of February, iBp, at the city of
Albany, in the state of New York, the
61
said plaintiff loaned to me the sum of
$/,ooo. 2. I promised to repay the
same on the first day of July, \%g8."
(Signed, dated and verified as in Form
No. 6031.)
2. The statement in this confession is in
substance that reported in the case of
Critten v. Vredenburgh, 4 N. Y. App.
Div. 216. The statement in that case,
besides the general averment as to
money loaned and labor and services
performed by the plaintiffs for the de-
fendants, alleged facts showing an ac-
count stated. The court held that the
statement therefore had as much force
as if it had averred an adjustment of
accounts on October i, 1895, and the
giving of a note by the defendants to
the plaintiffs, and was therefore suffi-
cient. This view of the case is sup-
ported by Freligh v. Brink, 22 N. Y.
418; Ely v. Cooke, 28 N. Y. 365. And
these cases are cited with approval by
Andrews, J., in Harrison v. Gibbons,
71 N. Y. 62. The case of Wood v.
Mitchell, 117 N. Y. 439, was considered
by the court and said not to be in con-
flict with the above decisions. Compare
also the confession of judgment dis-
cussed in Healy v. Preston, 14 How.
Pr. (N. Y. Supreme Ct.) 21.
Sufficiency of Statement for Money
Loaned. The following statements
have been held to be sufficient:
A statement which alleges that the
Volume 5.
6031. CONFESSION OF JUDGMENT. 6031.
Albany County, ss.
Richard Roe, being duly sworn, says that he is the defendant who
has made the above confession of judgment, and that all the matters
of fact mentioned and stated therein are true.
Richard Roe,
Sworn before me this twelfth day si January, iS96.
, .. Norton Pomeroy,
s Notary Public, New York County.
Supreme Court, Albany County.
John Doe, plaintiff,
against
Richard Roe, defendant.
Costs allowed by Code Civ. Proc., 1275 $15 00
Affidavits $
Entering judgment $
Transcript and filing $
Postage $
Sheriff's fees on execution served, etc $
Satisfaction, etc $
Total $
Albany County, ss.
Oliver Ellsworth, being duly sworn, says that he is one of the attor-
neys of the plaintiff in the above named cause, and that the disburse-
ments above mentioned have been made herein or will be necessarily
made or incurred herein, as he verily believes.
Sworn to before me this twelfth day si January, i895.
f , Norton Porter,
Notary Public, New York County.
moneys were loaned and advanced in began business as a producer of milk
various and divers sums between two and farmer the plaintiff furnished me
dates, which are specified, no uncer- with cows, horses, wagons, and other
tainty existing as to the aggregate articles and utensils required in the
amount of the loans, which is stated, or business, and hired a farm for me, pay-
as to how much of the amount is inter- ing the rent therefor, and has since
est and how much is principal. Wood that time advanced me moneys to en-
v. Mitchell, 117 N. .439. able me to conduct said business and to
A statement that in certain years, support my family, down to the present
naming them, the plaintiff advanced to time, which said money so advanced,
the defendant, at his request, a certain and the horses, cattle, wagons and
sum, naming it, which the defendant utensils furnished as aforesaid, were
promised to pay, and has not paid in worth upwards of eight thousand dol-
whole or in part, and that such sum is lars." Weil v. Hill, 71 Hun (N. Y.)
due and owing by the defendant to the 135.
plaintiff, and that the money loaned, A statement, in Iowa, reciting that
without interest, amounts to a certain the indebtedness is money borrowed of
sum, naming it. Miller v. Kosch, 74 plaintiff by defendant, which is evi-
Hun (N. Y.) 52, supported by Freligh denc'ed by a promissory note, set out
v. Brink, 22 N. Y. 418; Harrison v. in the statement. Marvin v. Tarbell,
Gibbons, 71 N. Y. 58, and not in con- 12 Iowa 94; Vanfleet v. Phillips, n
flict with Wood v. Mitchell, 117 N. Y. Iowa 558. And to the same effect, sub-
439. stantially, Kendig v. Marble, 58 Iowa
A statement "That at the time I 530; Miller v. Clarke, 37 Iowa 325.
62 Volume 5.
6032. CO2VFESSJON OF JUDGMENT. 6032.
ff. FOR PURCHASE MONEY OF REALTY.
Form No. 6032.'
State of North Dakota, ) In District Court,.
County of Barnes. \ ' Fifth Judicial District.
against" 1 * ' ( Confession of Judgment
Richard Roe, defendant. ) Statement -
I, Richard Roe, defendant in the above entitled action, do hereby
confess judgment therein in favor of John Doe, the plaintiff in said
action, for the sum of five hundred dollars, and authorize judgment
to be entered therefor against me with legal interest thereon from
this date.
This confession of judgment is for a debt justly due and owing to
the said plaintiff and for costs herein arising upon the following
facts, to wit: On the first day of February, i8#7, the said plaintiff
sold and conveyed unto the said defendant at Valley City in Barnes
county, state of North Dakota, certain real estate, to wit: Lot 5 in
block 3 of Nomans addition to the town of Valley City in said county
and state, for which said real estate the said defendant promised to
pay the sum of five hundred dollars to the said defendant. Neither
the whole nor any part of said sum has been paid to the said plain-
tiff, but is now justly due and owing from said defendant to said
plaintiff. 2
Richard Roe.
State of North Dakota, )
County of Barnes. \ SS '
Richard Roe, being duly sworn, says that he is the person who
signed the above statement and that he is indebted to John Doe in
the sum of five hundred dollars, in said statement mentioned; and the
facts stated in the above confession and statement are. true.
Richard Roe.
1. North Dakota. Codes (1895), conveyed by deed, dated September //,
6131. See also list of statutes cited 1877, and said indebtedness arose out
supra, note 2, p. 48. of the sale of said farm, and this con-
2. Sufficiency of Statement for Purchase fession of judgment is for the whole
Money for Real Estate. In Thorp v. amount due to said Thorp on said
Platt, 34 Iowa 315, in an action be- farm. If this judgment is paid within
tween the immediate parties to a judg- thirty days, the plaintiff herein hereby
ment, the following statement was authorizes the clerk of said court to
held sufficient: discount the same ten per cent, and
" I, J. N. Platt, hereby confess judg- cancel the same of record, defendant
ment in favor of Milton Thorp, the to have thirty days' stay without se-
plaintiff herein, for the sum of $^oo, curity; and that there is now justly
and authorize the clerk of said court due the plaintiff the sum first above
to enter judgment against me for said named."
sum, with costs. This confession of The court was not required to pass
judgment is for the sum agreed upon upon its sufficiency as between a party
between the parties hereto, in settle- to a judgment and a third party, but
ment of the contract price of the farm infers that in such case it would not
sold by said Thorp to said Platt, and have been sufficient.
63 Volume 5.
6033. CONFESSION OF JUDGMENT. 6033.
Subscribed and sworn to before me this ninth day of February,
A. D iS98.
(SEAL) Norton Porter, Notary Public.
(.Judge's order for judgment. y-
Form No. 6033.*
(Precedent in Weinges v. Cash, 15 S. Car. 47.)
The State of South Carolina. \ ^ r ^ n ,
r* c rt * u F Court of Common Pleas.
County of Chesterfield. \
Allen E. Cash }
v - f
Robert E. Ellerbe. )
I hereby confess myself to be indebted to Allen E. Cash, the plain-
tiff, in the sum of fifteen thousand dollars, and consent to and authorize
the entry of judgment therefor. The said judgment arises from the
fact that I am indebted to her on account of the purchase and rental
by me of lands to which she was entitled to an interest as an heir of
her father's estate, and also to the interest of her mother therein,
which she has transferred to the plaintiff and directed me to pay to
her, the same not exceeding the amount aforesaid, and the said
amount is now justly due to the plaintiff. 3
27th January, iS79. . G. Ellerbe.
[The State of South Carolina, )
County of Chesterfield. \
The defendant above named, being duly sworn, says that the above
1. Order of Judge or Court. The disbursements, amounting in the whole
statement must be presented to the to the sum of five hundred and ten dol-
district court or a judge thereof, and if lars.
the same is found sufficient the court Let judgment be entered accordingly.
or judge shall make an order that Dated this ninth day of February,
judgment be entered by the clerk. A. D. \%q8.
N. Dak. Rev. Codes (1895), 6132; By the court,
Wash. Stat. (1897), 5099. Such order John Marshall, Judge."
may be as follows: Or indorsed upon the confession,
" In District Court, Fifth Judicial thus:
District. " Richard Roe \
State of North Dakota, ) to
County of Barnes. \ s ' John Doe. )
John Doe, plaintiff, ~\ Order for The within confession of judgment
against > Judgment on having this ninth day of February,
Richard Roe, defendant. ) Confession. i8<?<?, been presented to me, and having
The written statement and confes- been found sufficient, let judgment be
sion of judgment of the defendant, entered as per statute provided,
herein duly verified by his own signa- Carroll Johnson, District Judge."
ture and oath, having been presented 2. South Carolina. Code Civ. Proc.
to the court and the court having (1893), 384. See also list of statutes
found the same sufficient: cited supra, note 2, p. 48.
It is now, on motion of Oliver Ells- 3. This confession was for an amount
worth, attorney for said plaintiff, or- less than that which was actually due,
dered, that plaintiff have judgment and was held to contain a sufficient
against the defendant Richard Roe for statement to comply with statutory
the sum of five hundred dollars, to- requirements,
gether with ten dollars for costs and
64 Volume 5.
State of Minnesota, \ District Court,
County of Hennepin. \ ' Fourth Judicial District.
6034. CONFESSION OF JUDGMENT, 6034.
statement and confession of judgment and the facts therein mentioned
are true to his knowledge, and further he says not.
R. G. Ellerbe.
Sworn to before me this 27th day of January, i879.
Norton Porter, Notary Public, Chesterfield County,
South Carolina.^-
gg. FOR SERVICES RENDERED.
Form No. 6034.*
<>. \
'in. )
Sampson A. Reed, Plaintiff,
against
Maria B. Nell, Defendant.
I, Maria B. Nell, above named, do hereby confess judgment in
favor of Sampson A. Reed, above named, for the sum of five hundred
dollars, and hereby authorize the clerk of the District Court in and
for the county of Hennepin and state of Minnesota, to enter judgment
therefor against me, said Maria B. Nell, and in favor of said Sampson
A. Reed.
This confession of judgment is for money justly due to the said Samp-
son A. Reed, arising from the following facts, viz. : The said indebt-
edness is due from the said Nell to said Reed on account of services
and money paid out by Seagraves Smith and said Reed, late copartners
as Smith and Reed, and performed at my special instance and request
between the first day of October, iS87, and the first day of March,
i&89, and that said amount has not been paid, but is now all justly
due and owing; that the said Smith and Reed, for a valuable consider-
ation to them paid prior to confession of this judgment, sold, assigned
and set over to the said Reed. 3
Maria B. Nell, Defendant.
1. This affidavit is inserted instead of due from me to the above plaintiff,
the one found in the precedent, as being Aaron J. Kellogg, on or about the i^th
better and more in conformity with the day of December, 1859; and the follow-
usual practice. The affidavit in the ing are the facts upon which said indebt-
reported case appended to the state- edness arises: The plaintiff had been in
ment of R. G. Ellerbe shows that he the employ of the defendant for several
swore " that the above statement is true; years, upon a salary; from year to year
that he justly owes the plaintiff the defendant has settled with plaintiff, al-
amount stated above on account of the lowing him interest upon such amount
facts stated." or amounts as remained unpaid. That
2. Minnesota. Stat. (1894), 6077. on the /jM day of December, iSjy, the
See also list of statutes cited supra, plaintiff and defendant settled, and
note 2, p. 48. there was then due to the plaintiff
3. This statement is based upon the $4300, for which sum defendant then
facts in Atwater v. Manchester Sav. gave his note, payable in two years,
Bank, 45 Minn. 350. The statement in with interest; that the amount of said
that case was held to be good even as note, with interest, on the i^th day of
against subsequent creditors. December, 1859, will be the sum of
In Kellogg i'. Cowing, 33 N. .408, the $4,002; and no payments have been
confession, omitting the formal parts, made on the said note, or the interest
was as follows: "This confession of thereon."
judgment is for a debt justly to become
5 E. of F. P. 5. 65 Volume 5.
6035. CONFESSION OF JUDGMENT. 6035.
State of Minnesota, \
County of H> ennepin. \
Maria B. Nell, being duly sworn, says that she is the defendant
above named, and that the matters of fact set forth in the within
statement and confession are true.
Maria B. Nell.
Subscribed and sworn to before me this fourteenth day of December,
A. D. i&89. Calvin Clark, Clerk of District Court.
State of Minnesota, ) District Court,
County of H ennepin. \ ' Fourth Judicial District.
Sampson A. Reed, plaintiff,
against
Maria B. Nell.
Costs allowed by statute , $5 00
Clerk's fees $
Affidavits $
Postage $
Docketing $
Total $
State of Minnesota,
County of Hennepin.
Oliver Ellsworth, being duly sworn, says he is the attorney for the
plaintiff above named; that the disbursements above mentioned
have been made or will be necessarily paid or incurred therein.
Oliver Ellsworth.
Subscribed and sworn to before me this fourteenth day of December,
i889. Calvin Clark, Clerk of the District Court.
' v In Circuit Court.
Form No. 6035.'
State of South Dakota.
County of Hughes.
John Doe, plaintiff,
against V Statement and Confession of Judgment.
Richard Roe, defendant. )
I, the subscriber hereto, do hereby confess judgment in favor of
John Doe for the sum of five hundred dollars, and authorize judgment
to be entered against me for that sum, besides costs.
This confession of judgment is for a debt at this time justly due to
said John Doe, and the following is a statement of the facts upon
which said confession of judgment is founded:
On the first day of February, iS97, at Pierre in the county of
Hughes, state of South Dakota, I hired and retained the said John Doe,
who now is and then was an attorney at law licensed and regularly
practicing in all the courts within said county, to defend me in a
certain prosecution pending in the Circuit Court of said county,
1. South Dakota. Dak. Comp. Laws (1883), 5538, 5539. See also list of
statutes cited supra, note 2, p. 48.
66 Volume 5.
6036. CONFESSION OF JUDGMENT. 6036.
wherein the State of South Dakota was plaintiff and myself defendant,
which said prosecution was for murder, and during the May Term of
the Circuit Court of said county the said John Doe did defend me in
said prosecution, and as a result of his professional services so ren-
dered I was regularly acquitted of said charge, as appears from the
records and the entry of the verdict in said cause appearing in the
office of the clerk of the Circuit Court of said county. Said profes-
sional services of said John Doe were reasonably worth the sum of
five hundred dollars, which said sum has never been paid by me to
the said John Doe for his said services, but is now justly due and
owing to him.
State of South Dakota, \
County of Hughes. \
Richard Roe, being duly sworn, says that he is the defendant above
named, and that the matter of fact set forth in the within statement
and confession are true.
Richard Roe.
Subscribed and sworn to before me this ninth day of February,.
iS98. Calvin Clark, Clerk of Circuit Court.
(Indorsement of judge's order. ,)*
hh. To SECURE AGAINST CONTINGENT LIABILITY.
Form No. 6036.*
In the Circuit Court for the State of Oregon, for the County ot"
Benton.
Thomas M. Reed, plaintiff,
against
Jacob Allen, defendant.
I, Jacob Allen, the defendant above named, do hereby confess
judgment in favor of * Thomas M. Reed, the plaintiff above named,
for the sum of two thousand eight hundred dollars in gold coin of the
United States, and authorize judgment to be rendered against me
therefor, and in favor of said plaintiff for the said sum of two*
thousand eight hundred dollars in gold coin as aforesaid.
This confession of judgment is made for the purpose of securing;
1. Order of judge indorsed upon the No. 6oj6, and continuing down to *)
confession should be as follows: "Thomas M. Reed, for the sum of two
"Order of Judge. thousand eight hundred dollars, to secure
On filing the within statement and him against any liability for the follow-
confession it is ordered that judgment ing cause: On the nineteenth day of
be entered by the clerk of this court in January, i8<5/, at Corvallis, in Benton
accordance therewith. county, Oregon, the said plaintiff in-
Dated the ninth day of February, dorsed for my accommodation a certain
iSp*?. promissory note made by me, dated the
Carroll Johnson, Circuit Judge, nineteenth day of January, iS6f, at Cor-
Sixth Judicial Circuit." vallis, Benton county, Oregon, to the
2. Oregon. Hill's Anno. Laws(i8g2), order of Samuel Short, for the' sum of
250-256. See also lisj of statutes two thousand eight hundred dollars, pay-
cited supra, note 2, p. 48. able one year after date and delivered
For Liability Incurred as Accommoda- the same to me." (Signed, dated and
tion Indorser. ( Commencing as in Form verified as in Form Wo. 6036.)
Volume 5.
6036. CONFESSION OF JUDGMENT. 6036.
the said Thomas M. Reed against any liability which may accrue to
him in consequence of his having signed a bond as security for me,
bearing date the seventh day of November, A. D. iS54, for the sum of
three thousand six hundred dollars; said bond was given by me as
guardian of the infant heirs of George W. Stewart, deceased, to wit,
Mary J. Stewart, Amanda Stewart and George W. Stewart?-
Dated at Corvallis, in Benton county, Oregon, the nineteenth day of
January, iS61. Jacob Allen, Defendant.
State of Oregon, \ ^
County of J3enton. j
I, Jacob Allen, being first duly sworn, say that I am the defendant
named in the foregoing confession of judgment, and that said con-
fession of judgment is true, as I verily believe.
Jacob Allen.
Subscribed and sworn to before me the nineteenth day of January,
i861. A. J. Thayer, Notary Public.
State of Oregon, \
County of enton. j"
On the nineteenth day of January, \W1, personally appeared before
me, a. justice of the peace in and for said county and state, the within
named Jacob Allen, to me personally known to be the identical
defendant described in and who executed the within confession of
judgment, and acknowledged to me that he executed the same freely,
and for the uses and purposes therein named.
1. This statement is based on the con- accommodation, and to enable me to
fession set out in Allen v. Norton, 6 negotiate said notes; and this confes-
Oregon 345. sion and judgment is given him to se-
Sufficiency of Statement to Secure against cure him against his liability as such
'Contingent Liability. The statement indorser, and for no other purposes."
must state concisely the facts consti- Hopkins v. Nelson, 24 N. Y. 518.
tuting such liability and show that the "The said Lanning assuming the
sum confessed therefor does not ex- payment of the sum of one thousand
ceed the same. dollars at the Bank of Havana, on the
California. Code Civ. Proc. (1897), ifth day of Jufy, 183-5, by which a note
1133. See also list of statutes cited of one thousand dollars, made by me,
supra, note 2, p. 48. payable to the order of Samuel Carpen-
The following statements have been ter at the said Havana Bank, dated on
.held to be sufficient: jfst day of May, 1855, and indorsed by
A statement describing the notes, the said Samuel Carpenter and D. J.
naming the respective amounts, dates Sunderlin, was paid and taken up."
and place of demand, without stating Lanning v. Carpenter, 20 N. Y. 448,
the consideration or that the notes had affirming 23 Barb. (N. Y.) 402.
been discounted, where such facts were But in Minnesota a statement to the
plainly inferable. Marks v. Reynolds, effect that " this confession is for $ 700
12 Abb. Pr. (N. Y. Supreme Ct.)4O3. for a liability incurred by plaintiff for
" For the purpose of securing the indorsing a bond for defendant, which
plaintiff against his liability arising bond is for that amount," was held to
from the facts hereinafter set forth, be insufficient. Kern v. Chalfant, 7
and does not exceed the amount of Minn. 487.
such liability. Said plaintiff has this " In an action pending " the statement
<iay indorsed my notes, payable at mentioned in section 252 of the Oregon
bank, for $6,000 in all; which indorse- code is not required. Miller v. Oregon
tnentsare made by said plaintiff for my City Paper Mfg. Co., 3 Oregon 26.
68 Volume 5.
6037. CONFESSION OF JUDGMENT. 6037.
Witness my hand (and seal) the day and year in this certificate
first above written.
Abraham Kent, Justice of the Peace?-
State of Oregon, \
County of Benton. j
I, Thomas M. Reed, the plaintiff named in the foregoing confession
of judgment, do hereby assent to the rendition of judgment in my
favor and against the defendant Jacob Allen, therein named, for the
sum of two thousand eight hundred dollars in United States gold coin,,
according to the terms of said confession of judgment.
Thomas M. Reed, plaintiff.
State of Oregon, \ ^
County of Benton. \
On the nineteenth day of January, \W1, personally appeared before
me, Abraham Kent, a justice of the peace in and for said county and
state, the above named plaintiff Thomas M. Reed, to me personally
known to be the identical person described in and who executed the
above assent to rendition of judgment upon confession, and acknowl-
edged to me that he executed the same freely, and for the uses and
purposes therein named.
Witness my hand (and seal) the day and year in this certificate
first above written.
Abraham Kent, Justice of the Peace?-
(Indorsement of 'judgment '.) 2
it. FOR BALANCE DUE ON JUDGMENTS.
Form No. 6037.*
(Precedent in Union Bank v. Bush, 36 N. Y. 631.)
\Supreme Court, Sullivan County.
Nathan S. Hammond, President of the Union Bank *
of Sullivan County, plaintiff,
against
Abial P. Bush, Luther Bush and Obediah H. Bush,
composing the firm of A. P. Bush 6 Company, de-
fendants.
We, Abial P. Bush, Luther Bush and Obediah H. Bush, composing
the firm of A. P. Bush 6* Company, of the county of Sullivan and
1. This acknowledgment is not neces- dred dollars, it is therefore adjudged
sary when the parties appear before the that the said Reed have and recover of
clerk in person. Hill's Anno. Laws said Allen the sum of two thousand
Oregon (1892), $ 253. eight hundred dollars, and five dollars
2. Judgment was indorsed upon the costs, this nineteenth day of January,
statement in Allen v. Norton, 6 Oregon i8<5/. E. L. Perham, Clerk."
345, as follows: "Thomas M. Reed v. 3. New York. Code Civ. Proc.,
Jacob Allen. Confession of judgment. 1274 (Birds. Rev. Stat. (1896), p. 1738*,
The said Jacob Allen having confessed 73). See also list of statutes cited su
judgment in favor of Thomas M. Reed fra, note 2, p. 48.
for the sum of two thousand eight hun-
69 Volume 5.
6038. CONFESSION OF JUDGMENT. 6038.
state of New York, defendants above named,] 1 do hereby confess
judgment in this cause, in favor of the above named plaintiff, Nathan
S. Hammond, President of the Union Bank [of Sullivan Count}'], 1 for
the sum of six thousand two hundred dollars, and authorize judgment
to be entered therefor against us. This confession of judgment is
for a debt justly due to the plaintiff arising upon the following facts:
For balance due upon three several judgments in the Supreme Court,
in favor of plaintiff against these defendants, which judgments were
docketed [in the clerk's office of Sullivan County, Febriiary 13th,
I857,] 1 and were obtained upon notes discounted by the Union Bank
of Sullivan County, for the defendants and the avails paid to us and
also for money this day loaned by the Union Bank of Sullivan County
to the defendants, for which, in addition to the above balance, this
judgment is confessed. 2
[Obediah H. Bush.
Luther Bush.
Abial P. Bush.
Sullivan County, ss.
Abial P. Bush, Luther Bush and Obediah H. Bush, being first
duly and severally sworn, each for himself, says that he is one of the
defendants whose name is subscribed to and who joined in the above
confession of judgment, and that all the matters of fact mentioned
and stated therein are true.
Abial P. Bush.
Luther Bush.
Obediah H. Bush.
Sworn before me by each of the affiants this twenty-seventh day of
Jiily, 1 857. Calvin Clark,
County Clerk of Sullivan County.] 1
(2) IN JUSTICE'S COURT.
Form No. 603 8. 3
John Doe
against
Richard Roe.
State of Florida, \
Taylor County. )
I hereby confess judgment before Abraham Kent, a justice of the
peace of the county of Taylor aforesaid, for the sum of fifty dollars
and fifty cents for money due to the said John Doe from me as pur-
chase money for a certain mule by the said John Doe to me sold and
delivered at Perry, in said county and state, on the first day of Janu-
1. The words and figures enclosed by S.Florida. Rev. Stat. (1892),
[ ] are not found in the reported case, 1609, 1623. See also list of statutes
but are inserted to complete the form. cited supra, note 3, p. 48.
2. This statement was upheld against For statutory form of confession of
objection thereto; the court holding judgment in Florida see Rev. Stat.
that it was in conformity with the re- (1892), p. 548, par. 15.
quirements of the New York statute
under which it was drawn.
70 Volume 5.
6039. CONFESSION OF JUDGMENT. 6040.
ary\ i8, which said purchase money, the amount of which is above
mentioned, has never been paid by me to the said John Doe, but is
now justly due and owing to him; and the said justice is hereby au-
thorized to enter a judgment against me in favor of the said John Doe
for said sum with costs.
Dated the second day of February, i8#c
Richard Roe.
Witness: Abraham Kent, Justice of the Peace.
(Annex indorsement of Justice's judgment y-
Form No. 6039.*
John Doe \
against V
Richard Roe. )
State of Indiana, \
Posey County. J
Judgment to be confessed before Abraham Kent, justice of the
peace of Mt. Vernon township, Posey county, for ninety-two dollars and
sixty cents, and the said Richard Roe swears that he owes the above
mentioned debt of ninety-two dollars and sixty cents, and that he does
not confess judgment therefor to defraud his creditors. 3
Richard Roe.
Sworn and subscribed before me, the undersigned, a justice of the
peace of said township and county, the tenth day of December, iS97.
Abraham Kent, Justice of the Peace.
Form No. 6 o 4 o . 4
~i~;~.;ff 1 In the Justice's Court, before Abraham Kent,
, plaintiff, I '
Justce Qf thc peace m and for
Richard ^defendant. Township, Harrison County. Confession
J of Judgment.
I, Richard Roe, of Logan in Harrison county, in the state of Iowa,
do hereby confess judgment in favor of John Doe, the plaintiff herein,
for the sum of eighty-seven dollars, and authorize the said justice to
enter judgment for the said sum against me with interest at six per
cent, per annum from the twelfth day of December, i8#7, with costs,
and state that said sum of money, with said interest and costs, is justly
due the plaintiff from me, and that the facts out of which the said
indebtedness arose are as follows, to wit: Eighty-seven dollars for
money loaned by the plaintiff to me, the said defendant, and that the
amount for which judgment is hereby confessed does not exceed
the amount due upon said indebtedness. 5
Dated this twelfth day of December, A. D. i8P7.
Richard Roe.
1. For this judgment see infra, Form ing or subsequent. Campbell v. Bald-
No. 6075. win, 6 Blackf. (Ind.) 364; Mavity v.
2. Indiana, Homer's Stat. (1896), Eastridge, 67 Ind. 211.
1490. See also list of statutes cited 4. Iowa. Code (1896), 4536. See
supra, note 2, p. 48. also list of statutes cited supra, note
3. Without affidavit, judgment by con- 2, p. 48.
fession in a justice's court is good as to 5. Sufficient Statement. Where the
parties but not as to creditors, preced- record showed that "the defendant"
71 Volume 5.
6041. CONFESSION OF JUDGMENT. 6042.
State of Iowa, \
Harrison County, j
Richard Roe, being duly sworn on oath, states that he is the defend-
ant in the foregoing entitled confession of judgment, and that he
has read the said confession of judgment, and that the statements
therein contained are true and correct, as he verily believes.
Richard Roe.
Subscribed and sworn to before me, a justice of the peace in and
for said county, by the said Richard Roe, this twelfth day of December,
A. D. i897. Abraham Kent, Justice of the Peace.
Form No. 6 o 4 i .
State of Kansas, \
County of Cowley. \
John Doe, plaintiff, } In Justice's Court, before Abraham Kent,
against V Justice of the Peace of Winfield, in Cow-
Richard Roe, defendant. ) ley County, Kansas,
Now comes Richard Roe and personally appears before said justice
of the peace, without process being issued or served upon him, and
voluntarily confesses that he is indebted to John Doe of said Winfield
for the sum of fifty-four dollars for goods, wares and merchandise
purchased by him from the s&\& John Doe during the year i896, and
that said indebtedness bears interest at the rate of six per cent, per
annum, and the said Richard Roe hereby authorizes the said justice of
the peace, on the application of said John Doe, plaintiff, to render
judgment against him for the sum of fifty-four dollars and three
dollars interest, said judgment to bear interest from date at the rate
of six per cent, per annum and for the costs hereof.
Dated they?/ day of November, i897.
Abraham Kent, Justice of the Peace.
Form No. 6042.*
To Abraham Kent, one of the justices of the peace in the township
cf Canton, in the county of Montcalm, I hereby confess judgment on
a demand arising upon (Here state the nature of the demand), in favor
of John Doe, for the sum of twenty-five dollars and fifty cents damages,
(naming him) " appeared and confessed Technicality and form are neither re-
the following note" (setting out the quired nor expected in the proceedings
note), "and says that he is justly in- of justices' courts. If the action and
debted for the same," the confession judgment of the court can be ascer-
was held to be sufficient. Barnett v. tained clearly from inspection of the
Juday, 38 Ind. 87. files and the docket entries required by
1. Kansas. 2 Gen. Stat. (1897), c. 95, statute to be made, no technicalities,
399-401- See also list of statutes imperfections or omissions in the entry
cited supra, note 2, p. 48. of the proceedings and judgment will
2. Michigan. How. Anno. Stat. avail to reverse or avoid the judgment.
(1882), 6816. See also list of statutes All that is requisite is that the language
cited supra, note 2, p. 48. used shall be such as will inform a per-
For sufficient confession of judgment in son of ordinary intelligence and mental
a justice's court see Kinyon v . Fowler, capacity of the action of the court.
loMich. 16; Dodge v. Bird, 19 Mich. 518. Kinyon v. Fowler, 10 Mich. 17.
72 Volume 5.
6043. CONFESSION OF JUDGMENT. 6044.
besides costs, and authorize you to enter judgment against me accord-
ingly. Dated the twenty-second day of December, iS97.
Richard Roe. 1
Signed in my presence,
Abraham Kent, Justice of the Peace.
Form No. 6043.*
State of Minnesota, \
County of Goodhue. \
To Abraham Kent, a justice of the peace of said county:
I hereby confess judgment in favor of John Doe and against myself
for the sum of seventy-jive dollars, which is honestly due the said John
Doe from me at this date; and I hereby authorize you to enter judg-
ment therefor against me. This confession is for a debt now justly
due from me to the said John Doe arising from the following facts:
That at Red Wing in the state of Minnesota, on the twelfth day of
September, iS96, the said John Doe sold and delivered to me one black
horse of the value of seventy-five dollars, and which said sum I agreed
to pay to saidyi^tf Doe as the purchase price of said horse; that no
part thereof has been paid, and that the whole thereof is now due.
Dated at Red Wing \h\sjourteenth day of November, i897.
Richard Roe.
County of Goodhue, ss.
Richard Roe, being duly sworn, says that the facts stated in the
above confession are true.
Subscribed and sworn to before me t\\\s fourteenth day of Novem-
ber, i&97. Abraham Kent, Justice of the Peace.
Form No. 6044.*
John Doe, plaintiff, } Before Abraham Kent, Justice of the
against > Peace, Lamar Township, Barton County,
Richard Roe, defendant. ) Missouri.
I, Richard Roe, hereby authorize 4 Abraham Kent, Esq., justice of
the peace within and for Lamar township, county of Barton, state
of Missouri, to enter a judgment on his docket against me in favor
of John Doe, the above named plaintiff, in the sum of fifty dollars,
1. Must be in writing, signed by the Rev. Stat. (1889), 6274; Hunter v.
defendant in the presence of the jus- Eddy, II Mont. 251. Unless defendant
tice. Wilson v. Davis, I Mich. 157; has been served with process and ap-
Beach v. Botsford, I Dougl. (Mich.) 199; pears in open court and confesses
Grouse v. Derbyshire. 10 Mich. 479; judgment. Loth v. Faconesowich, 22
Cox v. Crippen, 13 Mich. 509. Mo. App. 72; Chamberlin v. Mammoth
2. Minnesota. Stat. (1894), 5019- Min. Co., 20 Mo. 96; Franse v. Owens,
5021. See also list of statutes cited 25 Mo. 334; Davis v. Wood, 7 Mo. 162.
supri, note 2, p. 48. Defendant must personally appear be-
3. Missouri. Rev. Stat. (1889), fore the justice in open court. Mo.
6274. See also list of statutes cited Rev. Stat. (1889), 6274.
supra, note 2, p. 48. 4. Containing no authority to enter up
Must be in Writing. Oyster v. Shu- judgment is not a confession of judg-
mate, 12 Mo. 580; Semple, etc., Mfg. ment. Loth v. Faconesowich, 22 Mo.
Co. v. Thomas, 10 Mo. App. 459; Mo. App. 68.
78 Volume 5.
6045. CONFESSION OF JUDGMENT. 6046.
due on account (or by note, as the case may be), which is now on file
with said justice. Dated the twenty-fourth day vi January, iS97.
Richard Roe.
Witness: Banks B elk, and
Abraham Kent, Justice of the Peace. 1
Form No. 6045.'
To Abraham Kent, one of the Justices of the Peace in and for the
County of Cheshire.
I, John Doe, do hereby confess that I am indebted to Richard Roe
in the sum of fifty dollars, and consent that record thereof be made
against me in favor of the said Richard Roe and execution issue
accordingly (or be stayed for three months, or as the parties may agree).
John Doe.
Richard Roe.
Form No. 6046.*
* ' / Confession of Judgment before Justice of
against t ^ e p eace
Sarah Roe, defendant. )
To Abraham Kent, Esq., one of the Justices of the Peace of the
County of Suffolk:
Sarah Roe of Northport, town of Huntington, county of Suffolk,
state of New York, hereby confesses judgment in favor of John Doe,
the above named plaintiff, for the sum of fifty dollars, besides costs,
and authorizes you, the said justice of the peace, to enter up judg-
ment against her accordingly. And the said Sarah Roe states and
says, that the indebtedness for which the said judgment is hereby
confessed arose upon a demand upon a certain contract, to wit: The
said Sarah Roe, at Northport in said county and state, on the second
day of January, \W8, bought of and purchased from the said John
Doe certain goods, to wit, three hundred yards ribbon z.\. five cents per
yard and seven rolls of imitation lace trimmings at five dollars per
roll, making a total indebtedness of fifty dollars, which defendant
promised to pay plaintiff. Said goods were sold and delivered by
the said John Doe to the said Sarah Roe at the time and place afore-
said; no part of the said J /?//y dollars has been by the said Sarah Roe
paid to the said John Doe, but the whole of said amount is now justly
due and owing from the said Sarah Roe to the saidy^/? Doe-, [and
the said indebtedness was contracted by the said Sarah Roe in the
1. Must be signed by defendant or Must be in writing and filed with the
some person by him, for that purpose justice. N. Y. Code Civ. Proc.,
authorized. Mo. Rev. Stat. (1889), 3010, 3011 (Birds. Rev. Stat. (1896), p.
6274. 1803, 155). And by the justice in-
2. New Hampshire. Pub. Stat. dorsed as follows: " Filed this ninth
(1891), c. 247, 16. day of February, I&Q&. Abraham Kent,
3. Confession by Married Woman Justice of the Peace."
New York. Code Civ. Proc., 1273 Defendant must personally appear be-
(Birds. Rev. Stat. (1895), p. 1738, 72). fore the justice. N. Y. Code Civ.
In justices' courts, see Code Civ. Proc., Proc., 3010,3011 (Birds. Rev. Stat.
3010, 3011 (Birds. Rev. Stat. (1895), (1896), p. 1803, 155).
p. 1803, 154, 155).
74 Volume 5.
6047. CONFESSION OF JUDGMENT. 6047.
course of her trade or business of dressmaker and milliner, which
said business was at the time and year above mentioned by her car-
ried on in said village of Northport on her sole and separate
account.] 1
Dated at Northport in said county this ninth day of February, i8<9.
Sarah Roe?
Witness: Abraham Kent, Justice of the Peace of the Town of
Huntingdon, in said county.
[State of New York, \
County of Suffolk. \ ss>
Sarah Roe, being first duly sworn, says that she is one of the par-
ties in the above and foregoing confession of judgment; that she is
honestly and justly indebted to the <<>&\& John Doe in the sum of fifty
dollars over and above all just demands which she has against the
said John Doe, and that the above and foregoing confession is not
made or taken with intent to defraud any creditor.
Sarah Roe.
Sworn to before me this ninth day of February, iS98.
Abraham Kent, Justice of the Peace of Suffolk County, N. Y.
(Affidavit of John Doe.}]*
(Agreement to stay execution.}*
Form No. 6047.*
State of North Dakota,
County of Burleigh. f SS>
To Abraham Kent, a Justice of the Peace of said County:
I hereby confess judgment in favor of John Doe and against
1. That indebtedness was contracted in Code Civ. Proc., 3010, 3011 (Birds,
course of married woman's trade or busi- Rev. Stat. (1896), p. 1803, 155).
ness, or for the benefit of her separate In Arizona and Texas, the plaintiff,
estate, was necessary to be stated prior his agent or attorney, shall make and
to N. Y. L. (1884), c. 381. Since the file an affidavit in writing, signed by
passage of that act, however, and sub- him as to the justness of his claim,
sequent acts (Laws (1892), c. 594, Laws Rev. Stat. Ariz. (1887), 1444; Tex.
(1896), c. 272, 21), the matter enclosed Rev. Stat (1895), art. 1648. See also
by [ ] does not seem to be necessary. Montgomery v. Barnett, 8 Tex. 144.
2. Must be signed by the defendant* 4. Stay of execution by agreement is
N. Y. Code Civ. Proc., 3010, 3011 provided for by N. Y. Code Civ. Proc.,
(Birds. Rev. Stat. (1896), p. 1803, 155). 3010 (Birds. Rev. Stat. (1895), p. 1803,
3. Confession for more than fifty dollars 154). This agreement may be evi-
must be accompanied with the affi- denced by a writing as follows, an-
davits as indicated by matter within [] nexed to or indorsed upon the
in the text. N. Y. Code Civ. Proc., confession of judgment:
3011 (Birds. Rev. Stat. (1895), p. 1803, " We, ///// Doe and Sarah Roe, here-
155). by agree that no execution shall be
Plaintiff's affidavit must also accom- issued upon the judgment which may
pany the confession when the judg- be rendered under and by virtue of the
ment confessed is for more than fifty annexed confession, and that execution
dollars, which affidavit must state that shall be stayed thereon for six months
the defendant is honestly and justly in- from the date of the judgment. Feb-
debted to the plaintiff in the sum speci- ruary gth, \g8. John Doe,
fied therein over and above all just Sarah Roe."
demands which the defendant has 6. North Dakota. Rev. Codes (1895),
against the plaintiff, and that the con- 6131, 6701.
fession is not made or taken with in- See also list of statutes cited supra,
tent to defraud any creditor. N. Y. note 2, p. 48.
75 Volume 5.
State of North Dakota. ,
' v ss.
6048. CONFESSION OF JUDGMENT. 6048.
myself for the sum of eighty-seven dollars and twenty cents, which is
justly due to the said John Doe from me, and I hereby authorize you
to enter judgment therefor against me. This confession is for a
debt now justly due from me to the said John Doe arising upon the
following facts: {Here set out the facts); that no part thereof has
been paid and that the whole thereof is now due.
Dated at Bismarck this twenty-first day of December, iS97.
Richard Roe.
County of Burleigh. \
Richard Roe, being duly sworn, says that the facts stated in the
within confession are true.
Richard Roe.
Subscribed and sworn to before me this twenty-first day of Decem-
ber, i897. Abraham Kent, Justice of the Peace.
b. After Action Commenced 1 Cognovit."
(1) GENERALLY.
Form No. 6048.'
In the Queen's Bench (or Common Pleas or Exchequer of Pleas).
Between John Doe, plaintiff, and
Richard Roe, defendant.
I confess this action, and that the plaintiff hath sustained damages
to the amount of one thousand pounds (the damages laid in the declara-
1. Louisiana. In Dawson v. Babin, Pub. Gen. Laws (1888), art. 52, 64,
9 La. Ann. 357, the confession was 65. Such a supersedeas may be in the
held to be sufficient to authorize a judg- following form:
ment against the obligors and to dis- " State of Maryland, Allegany
pense with service of citation and County, to wit:
petition. Omitting formal parts, the We, Charles Smith and John Jones, do
confession was as follows: confess judgment to John Doe for the
"We waive citation and service of sum of one hundred and fifty dollars and
petition, and confess judgment accord- forty cents, damages and costs, which
ing to the prayer of the petition of were recovered by the said John Doe
M. V. Babin within for the sum of on the tenth day of April, 1896, before
three hundred and thirty-five dollars and Abraham Kent, a justice of the peace
ninety-two cents, with interest thereon of the state of Maryland in and for the
at the rate of eight per cent, per annum county of A llegany aforesaid, the debt
from the first day of January, 18^9, and costs to be levied on our goods,
until paid, and costs of suit, with stay chattels, lands or tenements for the use
of execution until the ist of December, of the said John Doe in case the said
18^9. March i6th, 18^9. Richard Roe shall not pay and satisfy
James C. Dawson, to the said John Doe the aforesaid judg-
Mary Ann Dawson. ment and costs with any additional
Signed in presence of costs thereon at the expiration of six
Enos Herbert." months from the date of said judg-
A confession of judgment by way of ment. Dated this fifteenth day of
supersedeas of a judgment or decree in April, 1896. Charles Smith. (SEAL)
the court of record shall, in Maryland, John Jones. (SEAL)
be a lien on the lands of the persons Test: Samuel Short.
therein named from the time such su- William West."
persedeas is filed, in like manner as 2. Illinois. For form of narr and
judgments rendered in any court of cognovit in Illinois see the title BILLS
law, but the confession shall not defeat AND NOTES, vol. 3, Form No. 4181.
the lien of the original judgment. 3. Cognovit in Assumpsit. This is the
76 Volume 5.
6048.
CONFESSION OF JUDGMENT.
6048.
tion, or sum indorsed as the debt on the back of the writ, if the cognovit be
given before the declaration), besides his costs and charges in this
behalf, to be taxed by one of the masters (or, if already taxed or
agreed on, say, " to the amount of one thousand pounds "); and in case
I shall make default in payment of the sum of one thousand pounds
(the real debt), being the debt in this action, together with the said
costs, on the day of next, the plaintiff shall be at
liberty to enter up judgment for the said sum of one thousand pounds
(the sum confessed; or, if in debt and the whole debt be confessed, say,
" the said debt "), together with the said costs and alsq the costs of
entering up such judgment, and shall also be at liberty thereupon
forthwith to sue out execution for the said sum of one thousand
pounds (the real debf) and the said costs, together with the amount of
the costs of such execution, officers' fees, sheriff's poundage, costs
of levying, and all other incidental expenses: And I do hereby
undertake not to bring any writ of error, nor file any bill in equity,
form set out in full in Chit. F. (1847),
p. 308, and may be readily adapted for
use in such states as have no statutory
provisions governing confessions of
judgment where the common law, as
recognized in the United States, is the
rule of practice.
Cognovit in Debt. The form of this
cognovit as given in Chit. F. (1847), p.
309, is as follows: (Title of court and
cause as in Form No. 6048) " I confess
the debt in this cause to the amount of
1,000 (or, if part only, say, ' I con-
fess that I owe to the above mentioned
plaintiff ,1,000, parcel of the debt by
him in his declaration in this action de-
manded ', and that the plaintiff hath
sustained damages to the amount of
one shilling on occasion of the detain-
ing thereof, besides his costs." (Con-
cluding as in Form No. 6048.)
Cognovit in Ejectment. The form of
this cognovit as given in Chit. F.
(1847), p. 362, is as follows:
( Title of court as in Form No. 6048.)
Between John Doe, on the demise of
Samuel Short, plaintiff, and
John Styles, defendant.
I confess this action, and that the
said John Doe is entitled to recover his
term (or terms} yet to come of and in
messuages, etc. (as in the declara-
tion, or part of them), with the appur-
tenances, situate in , in the county
of , [fart of~\ the tenements men-
tioned in the declaration in this cause;
and also that the said John Doe hath
sustained damage by reason of the
trespass and ejectment (or trespasses
and ejectments) in the said declaration
mentioned, to one shilling, besides his
costs of suit in this behalf to i,ooo(or
to be taxed by one of the masters). (If
the defendant confesses mesne pro jits, pro-
ceed thus: "And also that the said
John Doe hath sustained damage to
1,000 for the mesne profits of the [said
parcel of the~\ premises aforesaid, which
have or might have accrued or shall or
may accrue, from the day of
(the day of the demise in the declaration}
down to the day of next.")
And in case I shall make default in
delivering up possession of the [said
parcel of the} premises aforesaid, or in
the payment of the said sum of 1,000
for damages and costs as aforesaid (or
for damages as aforesaid, together with
the costs to be taxed as aforesaid) on the
day of next, then the said
John Doe shall be at liberty to enter up
judgment for his term (or terms') of and
in the [said parcel of the} premises afore-
said, and for his said damages and
costs above acknowledged, as also for
the costs of entering up such judgment
and of suing out execution, and that
he shall also be at liberty thereupon
forthwith to sue out execution for the
same, together with sheriff's poundage,
costs of levy, and all other incidental
expenses. And I do hereby agree (if
defendant have pleaded, say, "to with-
draw the plea by me pleaded in this
action, and") not to bring any writ of
error, or file any bill in equity, and that
it shall not in any case be necessary to
revive the judgment entered upon this
cognovit, either by scire facias or other-
wise, notwithstanding execution there-
on may not have issued within a year
after the signing thereof.
Dated" (concluding as in Form No.
6048).
7?
Volume 5.
6049. CONFESSION OF JUDGMENT. 6050.
nor do any other matter or thing to delay the said plaintiff from
entering up his judgment or suing out execution thereon, as aforesaid ;
also that it shall not at any time or in any event be necessary, pre-
vious to issuing the said execution, to revive the said judgment, or
to sue out or execute any writ of scire facias. Dated this
day of 1 8 .
Richard Roe.
Signed by the above named Richard Roe in the presence of me,
the undersigned Jeremiah Mason, one of the attorneys of the court
of , at Westminster, expressly named by the said Richard Roe,
and attending at the execution thereof at his request, to inform him
of the nature and effect hereof before the same was executed; and
I hereby declare myself to be attorney for the said Richard Roe, and
that I subscribe this attestation as such his attorney.
Jeremiah Mason.
Form No. 6049.'
' . (In the Court of Common Pleas of Allegheny County,
Ri^d Roe. \ Februar y Term ' l8 ^' No ' m -
On this ninth day of February, iS98, comes now the defendant
Richard Roe and hereby confesses judgment in the above action in
favor of John Doe, the plaintiff, against himself for the sum of five
hundred dollars and costs of suit, with a release of errors and with a
stay of execution according to law.
Richard Roe, Defendant.
(2) WITH A RELICTA VERIFICATIONE.
Form No. 6o5O. s
In the Queen's Bench (or Common Pleas or Exchequer of Pleas').
Between John Doe, plaintiff, and
Richard Roe, defendant.
I do hereby agree to withdraw the plea (or demurrer) by me
pleaded in this cause, and do confess this action (or the debt in this
cause). (Concluding as in Form No. 6048.)
1. Pennsylvania. i Troub. & H. (Addressed to F. A. McCalmont, Esq.,
Pr., 424-433. See also list of stat- Prothonotary.)
utes cited supra, note 2, p. 48. 2. Cognovit with a Relicta Verifica-
Written order for confession of judg- tione. This is the form set out in
ment in McCalmont v. Peters, 13 S. & Chit. F. (1847), p. 309, and may be
R. (Pa.) 196, was as follows: readily adapted for use in jurisdic-
" Common Pleas of Venango County, tions where the common law is the
of the February Term, 1822. Debt ten rule of practice.
thousand dollars. Relicta Verificatione to a Rejoinder and
Richard Peters, Jr., ) Plea. The following form is given in
v. Chit. F. (1847), p. 310:
Thomas R. Peters. ) '''Richard Roe) And thereupon the de-
I do hereby confess judgment in ats. > fendant, inasmuch as he
favor of the plaintiff above named for John Doe. ) cannot deny that the re-
the sum of ten thousand dollars, and joinder to said replication of the
authorize the prothonotary of said court plaintiff to the said plea of the said de-
to enter the same as of February Term, fendant by him (secondly) above pleaded
1822. Dated April 24th, 1822. in bar, and the matters therein con-
Thomas R. Peters, defendant." tained, in manner and form as the
78 Volume 5.
6051.
CONFESSION OF JUDGMENT.
6051.
2. By Attorney. 1
Form No. 6051.*
Circuit Court of Cook County. February Term, A. D. iS98.
same are above stated and set forth,
are not sufficient in law, freely here in
court relinquishes the said rejoinder
and the said plea of the defendant by
him (secondly) above pleaded in bar,
and wholly abandons all verification
thereof: Therefore let no regard what-
ever be further had to the said plea of
the defendant by him (secondly) above
pleaded in bar, or to the said rejoinder
to the said replication to the said
(second) plea."
Cognovit by Two Defendants in Debt,
the Debt Payable by Instalments, with a
Relicta Verificatione. The form of this
cognovit as given in Chit. F. (1847), p.
309, is as follows:
( Title of court and cause as in form
No. 6050.) "We confess the debt in
this cause amounting to 1,000, and
that the plaintiff has sustained dam-
ages to the amount of one shilling on
occasion of the detaining thereof, be-
sides his costs and charges in this
behalf, amounting to 1,000 (or to be
taxed 1 , etc., as in Form No. 6048), and
judgment may be forthwith entered up
for the said debt and costs, and the
costs of entering up the said judg-
ment; and we and each of us hereby
agree to pay the said debt and costs
by the following instalments, that is to
say, the sum of 1,000, part thereof,
on the day of now next en-
suing; the further sum of ,1,000, other
part thereof, on the day of every
succeeding month, until the whole of
the said debt and costs be fully paid
and satisfied; it being hereby under-
stood and agreed that no execution is
to issue on the said judgment until
default be made by us, or either of us,
in the payment of the said instalments,
or any or either of them, on the days
and at the times they respectively be-
come due and payable as aforesaid,
when the plaintiff shall be at liberty
thereupon forthwith to sue out execu-
tion for the same, and for the whole of
the said debt and costs that remain
unpaid, together with the amount of
officers' fees, sheriff's poundage, costs
of levying, and all other incidental ex-
penses. And we hereby agree to with-
draw the plea (or demurrer) pleaded
by us in this action, and undertake
not to bring any writ of error in this
cause, or file any bill in equity, or do
any other matter or thing whereby the
plaintiff may be delayed in entering
up his judgment or suing out execu-
tion thereon as aforesaid, also that it
shall not at any time or in any event
be necessary, previous to issuing the
said execution, to revive the said judg-
ment, or to sue out or execute any
writ of scire facias.
Dated this day of , A. D. .
Richard Roe.
Ed-ward Fox.
Signed " (concluding as in Form No.
6048).
I.Delaware. When judgment is
confessed by virtue of a warrant of at-
torney for a penalty, the attorney con-
fessing the judgment shall, in a written
direction to the officer entering the
judgment, set down the real debt, and
the time from which interest is to be
calculated; which shall be entered by
the said officer upon the docket of the
judgment. Del. Laws (1893), p. 811,
c. no, 14.
No declaration shall be necessary,
nor shall any cognovit be required for
the confession of any judgment. Del.
L. (1893), p. 795, c. 106, 32.
Tennessee. The debtor may author-
ize any person to confess judgment for
him. Tenn. Code (1896), 4706.
For other states in which provisions
exist relating to confession of judgment
by attorneys see list of statutes cited
supra, note 2, p. 48.
Conclusiveness of Confession. A con-
fession of judgment by an attorney of
record is conclusive until traversed and
found untrue. Devant v. Carlton, 57
Ga. 489. The confession in that case
was: "We confess judgment to the
plaintiffs for the sum of two thousand
and twenty dollars principal, nine hun-
dred and jiffy-four dollars and fifty-nine
cents interest and costs of suit.
P. B. & T. W. Robinson,
Defendant's Attorneys."
2. Illinois. Starr & C. Anno. Stat.
(1896), p. 3083, par. 66. See list of
statutes cited supra, note 2, p. 48.
Consult also the title BILLS AND NOTES,
vol. 3, Form No. 4181.
In Keith v. Kellogg, 97 111. 151, the
79 Volume 5.
6051.
CONFESSION OF JUDGMENT.
6051.
Richard Roe \
ads > Cognovit.
John Doe. )
And the said Richard Roe, defendant in the above entitled suit, by
Jeremiah Mason, his attorney, comes and defends the wrong and
injury, when, etc., and waives service of process, and says that he
cannot deny 1 the action of the said plaintiff, nor but that he, the
said defendant, did undertake and promise, in manner and form as
the said plaintiff has above complained against him, nor but that the
said plaintiff has sustained damages on occasion of the nonperform-
ance of the several promises and undertakings in the said declaration
mentioned, including the sum of one hundred dollars, for his reason-
able attorney's fees for entering up this judgment, over and above
his other costs and charges by him about his suit in this behalf
expended to the amount of one thousand dollars and j//y cents; 2 and
the said defendant further agrees that no writ of error or appeal
shall be prosecuted on the judgment entered by virtue hereof, nor
any bill in equity filed to interfere, in any manner, with the operation
of said judgment, and that he hereby releases all errors that may
intervene in entering up the same, or issuing the execution thereon,
and consents to immediate execution upon such judgment.
Jeremiah Mason, Defendant's Attorney.
cognovit, omitting the formal parts,
was as follows:
" And the said Harley M. Lyford, de-
fendant in the above entitled suit, by
George J. Munroe, his attorney, comes
and defends the wrong and injury,
when, etc., and waives service of
process, and says that he cannot deny
the action of the said plaintiffs, nor but
that he, the said defendant, did under-
take and promise in manner and form
as the said plaintiffs have above com-
plained against him, nor but the said
plaintiffs have sustained damages on
occasion of the nonperformance of the
several promises and undertakings in
the said declaration mentioned, includ-
ing the sum of $/oofor their reasonable
attorney's fees for entering up this judg-
ment, over and above their other costs
and charges by them about their suit in
this behalf expended, to the amount of
$4,221.02."
1. Cognovit containing words " I cannot
deny " is sufficient to authorize the clerk
to enter up the judgment. Lewis v.
Barber, 21 111. App. 638.
2. Confession ought to be for a specified
sum, and there is no power to enter a
judgment on a cognovit for an uncertain
and unliquidated amount. Little v.
Dyer, 138 111. 272.
Declaration. Under the Illinois stat-
ute authorizing judgments to be con-
fessed in vacation, plaintiff must file a
declaration on his cause of action.
Stein v. Good, 16 111. App. 516. The
following form of declaration may be
used:
" Circuit Court of Cook County.
November Term, 1897.
State of Illinois, )
Cook County. \
John Doe, the plaintiff in this suit, by
Jeremiah Mason, his attorney, complains
of Richard Roe, defendant in this suit,
in a plea of trespass on the case on
promises, for that whereas, the said de-
fendant heretofore, to wit, on the first
day of September, in the year of our
Lord one thousand eight hundred and
ninety-six, at Chicago, to wit, at Chicago
in the county aforesaid, made a 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 said
plaintiff, in and by which said note the
said defendant by the name, style and
description of Richard Roe, promised to
pay to the order of said plaintiff, by the
name, style and description of John
Doe, after the date thereof, the sum of
seven hundred dollars for value received,
with interest at six per cent, from date
thereof. And whereas, also, the said
defendant afterward, to wit, on the
same day and at the place aforesaid, to
80
Volume 5.
6052. CONFESSION OF JUDGMENT. 6053.
Form No. 6052.'
John Doe }
against > In the Circuit Court of Allegany County, Maryland.
Richard Roe. )
To the Clerk of the Circuit Court of Allegany County:
This case is to be docketed by consent as of "the February term,
iS97, the appearance of Daniel Webster, attorney for the defendant,
entered, and a judgment by confession entered in favor of the plain-
tiff for the sum of twelve hundred dollars with interest from \htfirst
day of December, i8#7, together with costs of suit.
Jeremiah Mason, Attorney fof Plaintiff.
Daniel Webster, Attorney for Defendant.
(Order of court.}*
Form No. 6053.*
State of Michigan, Circuit Court for the County of Montcalm
John Doe
against
Richard Roe.
And the said Richard Roe, defendant in the above entitled suit, by
Daniel Webster, his attorney, comes and defends the wrong and
injury, when, etc., and says that he cannot deny the action of the said
plaintiff, nor but that he the said defendant did undertake and prom-
ise in manner and form as the plaintiff in his complaint complains
against him, nor but that the said plaintiff has sustained damages on
account of the nonperformance of the several promises and under-
wit, at said county, made and executed ant, although often requested, etc., has
a power of attorney, and attached the not yet paid the said sum of money or
same to said note, by which power of any part thereof to the said plaintiff,
attorney Richard Roe, the said defend- but so to do has heretofore wholly re-
ant, authorized any attorney of any fused and still does refuse, to the dam-
court of record to appear for him in age of the said plaintiff of the sum of
said court at any time after the date of one thousand dollars, and therefore he
said note and confess a judgment, with- brings suit, etc.
out process in favor of the holder of Oliver Ellsworth,
said note, for such amount as may ap- Plaintiff's Attorney."
pear to be due thereon, with costs and 1. Maryland. Pub. Gen. Laws
five per cent, attorney's fees. By rea- (1888), art. 17, 50.
son whereof and by force of the statute 2. Order of court for entry of judgment
in such case made and provided the said upon order of counsel may be in the
defendant became liable to pay to the following words : " This ninth day of
said plaintiff the said sum of money in February, i89<f, it is ordered by the court
the said note specified, according to the that the clerk of the Allegany Circuit
tenor and effect of the said note and Court enter a judgment by confession,
power of attorney, and, being so liable, as agreed to by the attorneys of the re-
the said defendant in consideration spective parties in this case, as shown
thereof afterward, to wit, on the same by their accompanying order and agree-
day and year last aforesaid, and at the ment."
place last aforesaid, undertook and 3. Michigan. Judgments may be
then and there faithfully promised the entered in any circuit court in vacation
said plaintiff well and truly to pay unto as well as in term, upon a plea of con-
the said plaintiff the said sum of money fession, signed by an attorney of such
in the said note specified, according to court, although there be no suit then
the tenor and effect of said note and pending between the parties. How.
power of attorney; yet the said defend- Anno. Stat. (1882), 7662.
5 E. of P.P. 6. 81 Volumes.
6054.
CONFESSION OF JUDGMENT.
6054.
takings in the said declaration mentioned in the sum of twelve hun-
dred dollars damages, together with all costs and charges by him
about his suit in this behalf expended; and the said defendant further
agrees that no writ of error or appeal shall be prosecuted on the
judgment entered by virtue hereof, and he hereby releases all errors
that may intervene in entering up the same or issuing execution
thereon and consents to immediate execution on such judgment.
Dated this ninth day of February, iS98.
Daniel Webster, Defendant's Attorney.
Form No. 6054.'
State of New Jersey, Circuit Court of the Term of December, iS97.
Essex County.
John Doe }
against > In Case.
Richard Roe. )
The said defendant comes and relinquishes his said plea by him
above pleaded* and confesses the action of the said plaintiff and con-
sents that judgment be entered against him for the sum of five hun-
dred and fifty dollars of damages, together with costs of suit to be taxed.
Daniel Webster, Attorney of Defendant.
1. New Jersey. Gen. Stat. (1895), p.
2 534. 3- See also list of statutes cited
supra, note 2, p. 48.
Another form of cognovit, which may
be used in New Jersey, is as follows:
"Essex County Circuit Court.
Of the February Term, I80&
Richard Roe }
against > In Case.
John Doe. )
And the said defendant, Richard Roe,
by Jeremiah Mason, his attorney, comes
and defends the wrong and injury,
when, etc., and confesses the action of
the plaintiff and that he has sustained
damages by reason of the nonperform-
ance of the promises and undertakings
in the plaintiff's declaration mentioned
to the amount of five hundred dollars,
and he hereby confesses judgment in
favor of the said plaintiff for the sum of
five hundred &o\\a.rs, besides costs of suit
to be taxed. Jeremiah Mason,
Defendant's Attorney."
In Covenant In New Jersey. (Com-
mencing as in Form No. 6054, and con-
tin uing down to* except the substitution of
word "Covenant" for "Case" in the
tit/e)"and confesses that the said agree-
ment or guarantee in the declaration
set forth is his deed and that the plain-
tiff has sustained damages by reason
of the breaches in the declaration as-
signed, over and above his costs and
charges by him about his suit in this
behalf expended, to eight hundred and
fifty dollars, and consents that judg-
ment be entered in said action in favor
of the plaintiff and against him, the
said defendant, for the sum of eight
hundred and fifty dollars, besides costs
of suit to be taxed.
Daniel Webster,
Defendant's Attorney."
Affidavit of Plaintiff Form of. The
affidavit required by New Jersey Gen.
Stat. (1896), p. 174, 1 1, to authorize the
entry of a judgment by confession may
be as follows, to wit:
"John Doe \ In Debt. Essex Circuit
against > Court. On Bond and
Richard Roe. ) Warrant of Attorney.
Essex County, ss.
John Doe, of full age, being duly
sworn, on his oath, saith that the true
consideration of a certain promissory
note made by Richard Roe, the defend-
ant in this cause, dated July tst, A. D.
1897, payable on demand to the said
John Doe or order, for value received,
without defalcation or discount, for the
sum of five hundred dollars with inter-
est, a copy whereof is annexed to the
declaration in this cause, and for the
amount due on which, being five hun-
dred and ten dollars, judgment is about
to be confessed to the plaintiff in said
cause, by the defendant therein, by
82
Volume 5.
6055.
CONFESSION OF JUDGMENT.
Form No. 6055.'
Defendant's answer.
6055.
Doe, plaintiff,
against
Richard Roe, defendant.
I, Daniel Webster, an attorney at law duly admitted to practice in
the several courts of record in the state of Ohio, by virtue of the war-
rant of attorney attached to the foregoing petition, hereby enter an
appearance for the said defendant in the suit of John Doe, plaintiff,
against Richard Roe, defendant, and do hereby waive the issuance
and service of process herein, and do confess judgment in favor of said
John Doe against the said Richard Roe, for the sum of one hundred and
four dollars, 2 and ten cents, damages, being the amount due as prin-
cipal and interest on the said promissory note, and also for costs of
suit. I do hereby release all errors and waive all right of appeal.
Daniel Webster, Defendant's Attorney.
Darnel Webster, hi* attorney, by virtue of
a special warrant of attorney, made and
executed by the said defendant, dated
the first day of November, A. D. 1897,
is as follows: For goods, wares and
merchandise sold and delivered to the
said Richard Roe by said_/f^ Doe dur-
ing the months of May and _/<, 1897,
and this deponent further saith that the
said sum of five hundred and ten dol-
lars is justly and honestly due and
owing by the said defendant to the said
plaintiff, and that the said judgment is
not confessed to answer any fraudulent
intent or purpose, or to protect the
property of the said defendant from his
other creditors. John Doe.
Sworn and subscribed before me this
ninth day of February, 1897, a\ Newark.
, . Norton Porter,
Notary Public.
This affidavit was produced before
me at the time of confessing judgment
in this action.
John Marshall, Circuit Judge."
The affidavit is a prerequisite to the
entry of judgment and essential to its
validity. Clapp v. Ely, 27 N. J. L. 555.
The consideration must be shown in
the affidavit. Latham v. Lawrence, n
N. J. L. 322; Scudder v. Coryell, 10 N.
J. L. 340; Woodward v. Cook, 6 N. J.
L. 1 60.
It is not a sufficient setting forth a
consideration of a bond on which judg-
ment is confessed to state that it is a
promissory note given by the defendant
to A, and by him indorsed to plaintiff.
Reading v. Reading, 24 N. J. L. 359.
Stating debt to be justly due is sufficient
without stating that it is justly owing.
Reading v. Reading, 24 N. J. L. 358;
Mulford v. Stratton,4i N. J. L. 466.
1. Ohio. Bates' Anno. Stat. (1897),
5321-5325.
Defendant most personally appear in
court to authorize a judgment by con-
fession under Bates' Anno. Stat. (Ohio,
1897), 5231.
2. Judgment for a greater sum than
shown to be the amount due under the
cause of action as stated in the record
is erroneous. Rosebrough v. Ansley,
35 Ohio St. 107.
A petition duly verified should be filed
when a judgment by confession under
a warrant of attorney is sought. Sid-
ney First Nat. Bank v. Reed, 31 OhioSt.
435. Such petition may be as follows:
" The State of Ohio, \ In the Court of
Hamilton County, ss. ) Common Pleas.
^ f in p s? imiff ' I"'*
Richard Roe, defendant. ) r
SaiidJoAn Doc, plaintiff, complains of
said Richard Roe, defendant, for that
the said defendant, on theyfrj/ day of
February, 1897, at Cincinnati, in the
state of Ohio, for value received, made
his certain promissory note in writing
of that date, together with a warrant
of attorney, which said promissory
note, together with all the indorsements
thereon, and said warrant of attorney
are hereto attached, marked Exhibit
A and hereby made a part of this peti-
tion; and that the said defendant then
and there delivered the said promissory
83
Volume 5.
6056.
CONFESSION OF JUDGMENT.
6056.
Form No. 6056.'
(Title of court and cause as in Form No. 6094.) I, Jeremiah Mason,
attorney for Richard Roe, above named defendant, on this ninth day
of February, i&98, do hereby enter an appearance for the said def end-
note and warrant of attorney to the said
plaintiff, and thereby promised to pay
to the said plaintiff, or order, one year
after the date thereof, the sum of five
hundred dollars, with interest thereon,
at the rate of four per cent, per annum,
which period has since elapsed, yet
said defendant has not paid said sum
of money or any part thereof to said
plaintiff, although often requested so
to do; and said plaintiff further says
that the full amount of five hundred
dollars, with interest as aforesaid, is
now due thereon and wholly unpaid;
that he has never parted with the
ownership of said promissory note, and
that he is still the legal owner and
holder thereof.
Wherefore, said plaintiff prays judg-
ment against said defendant for the
sum oifive hundred dollars, with inter-
est thereon, at the rate of four per
cent, per annum, from theyfrj/day of
February, 1897.
Oliver Ellsworth,
Plaintiff's Attorney.
The State of Ohio, \ Plaintiff's attor-
Hamilton County, ss. ) ney's affidavit.
Oliver Ellsworth, being duly sworn,
says, that he is the attorney of record
of the plaintiff named in the above and
foregoing petition; that this suit is
brought upon an instrument of writ-
ing for the payment of money only, to
wit, upon a promissory note; that said
instrument of writing is in possession
of him, the said Oliver Ellsworth, and
that he verily believes the statements
contained in the foregoing petition are
true in substance and in fact.
Oliver Ellsworth.
Sworn to before me, and subscribed
in my presence, by said Oliver Ells-
worth, this ninth day of February, \%q8,
(SEAL) Norton Porter,
Notary Public."
Defects in verification of such a peti-
tion will be considered waived where
the judgment was under a warrant au-
thorizing the waiving of process and
release of all errors. Sidney First Nat.
Bank v. Reed, 31 Ohio St. 435.
1. Pennsylvania. I Troub. & H.
Pr., $S 424-433.
Under a warrant in the usual form in
Hageman v. Salisberry, 74 Pa. St. 280,
empowering "any attorney of any
court, etc., to appear before me, and
after one or more declarations filed for
the above penalty, thereupon to confess
judgment," etc., a declaration was filed
on the bond in suit by T. ]. Bigham,
Esq.. as attorney for plaintiff. A con-
fession of judgment was also filed as
follows:
" By virtue of a warrant of attorney,
authorizing me thereto, I appear for the
defendant above named, and confess
judgment against him for the sum of
six hundred dollars, with costs of suit,
release of errors; to be released on pay-
ment of three hundred dollars, with in-
terest and attorney's commission, and
with leave to take out execution for
said sum, with interest from the first
day of December, 1856. Hereby waiv-
ing inquisition and condemnation on
all real estate and appraisement on all
property, real or personal, taken in
execution by virtue hereof.
T. J. Bigham,
Attorney for the Defendant."
Docket entry of the confession was as
follows:
1164, January Term,
1857. D. S.B.,$boo.
Real debt, $j>oo. In-
A. Rowland. \ terest from December
} ist, i8j6.
And now, December jjth, i8j-<5, comes
T.J. Bigham, Esq., and confesses judg-
ment in favor of the plaintiff, W. O.
Leslie, against the defendant, A. Row-
land, for the sum of six hundred dol-
lars, to be released on payment of three
hundred dollars on the ist December,
1856, with interest from said December
ist, 1856, with waiver of inquisition,
and condemnation and appraisement,
and with attorney's commission, etc.
John Birmingham, Pro.
1 f j6> January Term,
185-7. Fi. fa. on 164,
W. 0. Leslie January Term, 1857.
v. V Penalty, $600. Real
A. Rowland. Debt, $j>oo. Interest
from December ist,
1856.
and condemnation
Inquisition
waived.
Volume 5.
6057. CONFESSION OF JUDGMENT. 6057.
ant and confess judgment against him, the said Richard Roe, and in
favor of the plaintiff above named, John Doe, for the sum of five
hundred dollars and costs of this suit, with a release of errors and
with stay of execution according to law.
Jeremiah Mason, Attorney for Defendant.
Form No. 6057.'
(Precedent in Rogers v. Cherrier, 75 Wis. 57.)
N. McKie, Plaintiff, )
against > Answer of defendant.
Henry E. Rogers, Defendant. )
And now comes the above named defendant by J. C. Officer, his
attorney, and by virtue of the power of attorney hereto annexed
waives the service of process upon the said defendant and enters his
appearance herein and confesses all the allegations in the plaintiff's
complaint, and that there is due from the defendant to the plaintiff
on the note described therein four thousand two hundred and seven
dollars and twenty-three cents, and hereby confesses and authorizes
judgment for that amount, together with costs, and now here releases
all errors which may intervene in entering up judgment hereon and
in issuing execution on such judgment and waives notice of the taxa-
tion of said costs and consents that the same may be taxed and
allowed at the sum of fourteen and three one-hundredths dollars.
J. C. Officer, Defendant's Attorney..
Appraisement waived." ant Richard Roe, the sum vifi-ve hundrecT
Return: "Levy made on the real dollars. John Doe.
estate described in the schedule an- Subscribed and sworn to before me,
nexed. Sale advertised according to this ninth day of February, i%q8.
law, and property sold January 26th, Norton Porter, Notary Public.
to Wm. 0. Leslie, Esq., for $32, and ap- Vernon County, Wisconsin.'*'
plied to the costs of this writ. So an- Where affidavit is not made by plaintiff
swers R. Patterson, Sheriff." himself, the fact that it is made on his
1. Wisconsin. Sanb. & B. Anno, behalf must be stated, and the affidavit
Stat. (1889), 2894 et seq. must further show why it is not made
The Affidavit of Plaintiff Form of. by the plaintiff. Sloane v. Anderson.
The affidavit required by the Wisconsin 57 Wis. 123; McCabe v. Sumner, 40
statutes may be as follows: Wis. 386.
"State of Wisconsin, \ Affidavit of Whether the debt is due or not, and
County of Vernon. f ' Plaintiff. what part, if any, is not due, should be
John Doe, being duly sworn, says that shown in the affidavit, complaint, an-
he is the plaintiff named in the annexed swer and judgment. Sloane v. Ander-
complaint; that the contents of said son, 57 Wis. 123.
complaint are known to him, and that An affidavit which does not state the-
the same are true in substance and in amount due, but states that the facts
fact; that this action is brought upon averred in the complaint are true to
an instrument in writing for the pay- the knowledge of the affiant, and the
ment of money only; that the said in- complaint referred to specifies the
strument in writing is in the possession amount due on the note, is probably
of said plaintiff, and that his knowledge sufficient. Rogers v. Cherrier, 75 Wis.
is derived from said instrument; that 59.
the plaintiff is the legal holder of said Plaintiff must make the affidavit, it
instrument of writing, and that there is seems, in Texas. An affidavit made by
now due upon said instrument of writ- his attorney is not sufficient. Mont-
ing to the said plaintiff, from the defend- gomery v. Barnett, 8 Tex. 144.
85 Volume 5.
6058. CONFESSION OF JUDGMENT. 60.58.
3. By Corporation.
Form No. 6058 .'
(Precedent in Sharp v. Danville, etc., R. Co., 106 N. Car. 310.)
State of North Carolina,
Rockingham County.
Thomas R. Sharp, Plaintiff,
r ' >- Superior Court.
The Danville, Mocksville and Southwestern C
Railroad Company, Defendant.
The Danville, Mocksville and Southwestern Railroad Company, by E.
C. Winstanley, secretary of said company, being thereunto duly
authorized by said company, hereby confesses judgment in favor of
Thomas R. Sharp, the plaintiff above named, for sixteen thousand eight
hundred and sixty-seven dollars and sixty cents, with interest on
$8,017.60 thereof from the 14th day of November, iS81, and $4,600
thereof from the 26th day of November, iS85, until paid, [and
authorizes the entry of judgment therefor against the said Danville,
Mocksville and Southwestern Railroad Company on this seventh day of
November, iS85.] 2
This confession of judgment is to secure the plaintiff against divers
liabilities on behalf of the Danville, Mocksville and Southwestern Rail-
road Company, amounting, in the aggregate, exclusive of interest, to
the principal sum above stated, the several liabilities arising upon
the following facts, to wit:
i. The said Thomas R. Sharp, as president of said company,
accepted the draft of Burnham, Parry, Williams 6 Co., in the sum
of $8,016.35, and indorsed the same individually, of which the fol-
lowing is a copy, to wit: (Copy of draft. }*
The consideration of said draft was the purchase money for the
railroad engine or locomotive " Lilly C. Morehead" bought for use
upon roadway of said company, and the same went to protest at the
cost of 1.25, and on this draft the drawers have brought suit in the
State of Virginia against the Danville, Mocksville and Southwestern Rail-
road Company, and the said Thomas R. Sharp individually, and have
also brought suit in the State of North Carolina, which is now pend-
ing (coupled with an attachment of said Sharp's real estate in North
Carolina} against the said Thomas R. Sharp individually, as indorser
-of said draft. 4
\.North Carolina. Code (1883), and sixteen dollars and thirty- fve cents,
571. See also list of statutes cited value received, and charge to account of
supra, note 2, p. 48. Burnham, Parry, Williams <2^ Co.
2. The words and figures enclosed by To Thos. R. Sharp, Esq., President
[ J will not be found in the reported Danville, Mocksville and South-western
case, but have been added to render Railway, No. 115 Broad-way, Ne-ivYork"
the form complete. (Indorsed 1 '' Thos. JR. Sharp.")
3. Draft mentioned in text was in words 4. A statement made to the effect that
and figures following, to wit: " defendant is indebted to plaintiff in a
" $$,0/6.35. sum certain arising from the accept-
Philadelphia, Oct. 12th, iSSf. ance of the draft of which the following
Thirty days after date, pay to the is a copy," setting out a copy of the
order of Thos. R. Sharp eight thousand draft, falls far short of the demands of
86 Volume 5.
6058. CONFESSION OF JUDGMENT. 6058.
2. On or about the 24th day of October, i&&5, the said Thomas R.
Sharp became individually liable, by indorsement of a draft, drawn
by E. C. Winstanley, secretary of the said railroad company, drawn
upon Thomas R. Sharp, president of said company, and by said
Thomas R. Sharp individually indorsed, and thereafter passed to
Johnson & Cheek, bankers, for full value, who are now the holders
thereof. The consideration of said draft was money loaned by
Johnson & Cheek upon said draft, so indorsed, for the use and
benefit of said railroad company, and the same will become due and
payable on November 26th, i&&5, and the said Thomas R. Sharp will
thereafter be under contingent liability to pay the same.
3. In the month of September, 1886, in seventeen suits now pend-
ing in the Superior Court of Rockingham County, upon petitions for
recordari and supersedeas in the matter of J. Turner Morehead cr* Co.,
v. The Danville, Mocksville and Southwestern Railroad Company, the
said Thomas R. Sharp became liable as surety to said company in
seventeen penal bonds, each in the sum of two hundred and fifty
dollars, required by the court to be filed by said company, the
aggregate of which seventeen penal bonds is the sum of forty-two hun-
dred and fifty dollars, as may be seen by reference to the records of
the Superior Court of Rockingham County, in which said suits are
pending, and the object of which petitions for recordari is to prevent
the forced sale and sacrifice of said company.
A statement of said Thomas R. Sharp's account against said com-
pany by reason of said contingent liability, duly sworn to, is hereto
attached, and is hereby made a part of this statement, which said
exhibit was, on this 7th day of November, i8<PJ, submitted to the
Board of Directors of said company, and by them approved, as show-
ing the amount of the said Thomas R. Sharp's contingent liability for
and in behalf of said company, and the said sum for which entry of
judgment is hereby authorized is correct, and does not exceed the
amount of said contingent liabilities.
Witness, the signature of E. C. Winstanley, Secretary of said com-
the statute. In consideration of the fesses the cause of action in the plain-
draft, the time and manner of its tiff's declaration aforesaid mentioned
creation should be stated. Davidson and set forth to the extent and amount
v. Alexander, 84 N. Car. 625. hereinafter mentioned, and that the
The confession and plea filed by the cor- said plaintiff hath, from the causes in
poration in Hackett v. Boston, etc., R. said declaration mentioned, sustained
Co., 35 N. H. 391, omitting the formal damages to the amount of ten dollars,
parts, was as follows: and no more; which sum of ten dollars
"The defendants come and defend the said town of Dover hath always
the wrong and injury, when, etc., and been ready and willing to pay to the
confess the plaintiff's said action and said plaintiff, and bring the same into
that he is entitled to recover damages our court here, for that purpose; and
thereon to the amount of twenty dollars as to the rest and residue of said
and no more, and as to the residue of declaration, and of the causes of action
the claim the defendants say they are therein set forth and alleged, and all
not guilty," etc. damages therein claimed by said plain-
The municipal corporation in Kelley v. tiff, over and above the amount afore-
Dover, 18 N. H. 566, pleaded as fol- said, they, the said ttown of Dover, say
lows, omitting the formal parts: that they are not guilty in manner and
" And the said town of Dover comes form as the plaintiff hath thereof alleged
and defends, and when, etc., and con- against them, the said town, "etc.
87 Volume 5.
6059. CONFESSION OF JUDGMENT. 6059.
pany, and the corporate seal thereof, hereto affixed, under the specific
authority of the Board of Directors of said company, duly granted
by resolution, a certified copy whereof is herewith filed. This Nov.
7, i&85.
Danville, Mocksville and S. W. R. R. Co. ,
by E. C. Winstanley, Secretary.
State of North Carolina, \
Rockingham County. )
Before me, John T. Pannill, Clerk of the Superior Court of Rock-
ingham County, personally appeared E. C. Winstanley, Secretary of the
Danville, Mocksville and Southwestern Railroad Company, who, being
duly sworn, maketh oath that he is the Secretary of said company,
and that the statement above signed by him is true.
1ti\s November 1th, iS85.
John T. Pannill, C. S. C.
4. By Executor.
Form No. 6059.'
In the Queen's Bench (or Common Pleas or Exchequer of Pleas).
Between Thomas Davis, plaintiff, and
John Doe, executor of the last
will and testament of Peter
Barlou', deceased, defendant.
I confess this action, and that the plaintiff hath sustained damages
to the amount of one thousand pounds, besides his costs and charges
(as between attorney and client) to be taxed by one of the masters,
[and I do also acknowledge that goods and chattels that were of the
said Peter Barlow at the time of his death of the value of the dam-
ages and costs aforesaid, and wherewith I am liable to pay, and
ought to have paid the same, have come to my hands, as executor as
aforesaid to be administered, and that I have eloined, wasted and
disposed thereof to mine own use;] and in case I shall make default
in the payment of the debt and costs agreed on in this action, and
interest thereon, in manner following, that is to say, (Here set out
1. Cognovit by Executor Admitting As- ered" (concluding with the judgment in
sets, etc. This form is set out in Chit, the usual manner).
F. (1847), p. 310, and may readily be In Action on the Case. In Virginia.
adapted for use in jurisdictions where omitting the formal parts, the confes-
the common law is the rule of practice, sion of judgment by an executor may be
In Action of Debt. In Virginia, omit- as follows: "This day came as well
ting the formal parts, the confession of the plaintiff by his attorney as the
judgment by an executor may be as defendant in his own proper person,
follows: "This day came as well the and they do agree that the plaintiff hath
plaintiff by his attorney as the defend- sustained damages by occasion of the
ant in his own proper person, and the nonperformance by the defendant's
said defendant acknowledges the plain- testator, Samuel Short, of the assump-
tiff's action for the sum of five hundred tions in the declaration mentioned to
dollars, the debt in the declaration men- the sum of five hundred dollars, with
tioned, with interest thereon at the rate interest thereon at the rate of six per
of six per centum per annum from the centum per annum from the ninth day
ninth day of February. 1897, till paid, of February, 1897, till paid, besides his
and the costs. Therefore, it is consid- costs. Therefore, it is considered by
88 Volume 5.
6060. CONFESSION OF JUDGMENT. 6060.
mode of payment agreed on), the plaintiff shall be at liberty to enter up
judgment for the said debt, interest and costs, or so much thereof as
shall remain due at the time of entering up such judgment, and also
for the costs of entering up such judgment and suing out execution
thereupon, and shall be at liberty to sue out execution thereon, together
with the amount of sheriff's poundage, officers' fees, costs of levy, and
all other incidental expenses, [and I undertake that the plaintiff may
in every respect hold me as personally liable for the said debt and
costs, and enter up and enforce this judgment accordingly.] And I
undertake and agree that it shall not be necessary for the plaintiff to
issue out any writ or writs of scire facias upon the said judgment for
the purpose of reviving the same, or of suggesting a devastavit, or
to bring any action upon that judgment in order to enforce satisfac-
tion thereof, and that I will not file any bill in equity, nor sue out
any writ of error, nor do any other act, matter or thing, whereby the
said plaintiff may be delayed from entering up such judgment and
suing out execution upon default made as aforesaid. Dated this
day of , A. D. .
John Doe.
Signed (concluding as in Form No. 6048).
5. By Guardian of Lunatic.
Form No. 6060.'
(Precedent in McAden v. Hooker, 74 N. Car. 26.)
R. Y. McAden vs. O. Hooker, } In the Superior Court, Orange County.
guardian of J. Turner, Sen., > Statement and affidavit and confes-
andj. Turner, Jr. ) sion of judgment.
The defendants allege :
1. That Josiah Turner, Sen., is a lunatic, and O. Hooker is his
guardian.
2. That there is due the plaintiff from these defendants, by bond,
five thousand dollars, with interest at eight per cent, from the 26th of
October, 1868.
3. That the money, $5,000, was borrowed from the assignee of the
plaintiff by the defendants, and a bond was given therefor, and is
justly due the plaintiff.
4. These defendants authorize the entry of judgment against them
ior five thousand dollars, with interest thereon from the 26th October,
1868.
Josiah Turner, Jr.
O. Hooker, Guardian.
[State of North Carolina, \
Orange County.] 2
Personally appeared before me, George Laws, Clerk of the Superior
Court of Orange, J. Turner, Jr., and O. Hooker, guardian of J.
the court" (concluding with the judgment 2. The words enclosed by [ ] are not
in the usual manner). found in the reported case, but are in-
1. North Carolina. Code (1883), 571. serted to complete the form. The date
See also list of statutes cited supra, note of the proceedings does not appear.
2, p. 48.
89 Volume 5.
6061. CONFESSION OF JUDGMENT. 6061.
Turner, Sen., who being duly sworn, maketh oath that the above
statement is true.
Josiah Turner, Jr.
O. Hooker, Guardian.
[Dated this day of , 18 .
George Laws, C. S. C.] 1
III. RECOGNIZANCE FOR DEBT.
Form No. 6061 .*
(Mass. Pub. Stat. (1882), p. 1107, 2.)
Worcester, ss.
Be it remembered that on this thirteenth day of December, i&97,
Richard Roe, of Worcester county, personally appeared before the
Superior Court now held at Worcester within and for the county of
Worcester (or " before Calvin Clark, the clerk Q{ the Superior Court
for the county of Worcester'), 3 and acknowledged himself indebted
to John Doe, of Worcester county, in the sum of three hundred dollars
to be paid to said John Doe on the first day si December, iS97 (or "in
two years, or in six months, from this day"), with interest from this
day; 4 and, if not then paid, to be levied upon his goods, chattels,
lands and tenements, and, for want thereof, upon his body. In wit-
ness whereof said Richard Roe hath hereto set his hand.
Richard Roe.
Calvin Clark Clerk of the Superior Court
for the County of Worcester : 5
1. The words enclosed by [ ] are not taken in term time or vacation and
found in the reported case, but are in- shall be recorded at length by him
serted to complete the form. The date among the records of the court. Mass,
of the proceedings does not appear. Pub. Stat. (1882), c. 193., 4.
2. Recognizance for Payment of Debt If the conusee dies before the debt is
Massachusetts. Any person who is by paid, his executor or administrator
law capable of binding himself by a may, upon exhibiting to the clerk or
common bond may enter into a recog- justice his letters testamentary or of
zance for the payment of a debt, and administration, sue out execution in
may thereby subject his person, goods the same manner as the conusee might
and estate to be taken on execution, have done, and the form of the execu-
Mass. Pub. Stat. (1882), c. 193, I. tion shall be altered accordingly. Mass.
3. May be taken before superior court in Pub. Stat. (1882), c. 193, 9.
any county in term time, or before the Execution shall recite the recognizance,
clerk of said court in vacation. Mass, state the amount then due, and other-
Pub. Stat. (1882), c. 193, 2. wise be in the usual form of an execu-
4. Clause as to the payment of interest tion on a judgment for debt. Such
may be altered or wholly omitted, ac- execution may be issued by the clerk
cording to the agreement of the parties; without any special order of the court,
but interest shall always be allowed for Mass. Pub. Stat. (1882), c. 193, 7.
any delay after the time of payment, Maine Stat. (1883), c. 112, i, pro-
unless the recognizance contains an ex- vided for a somewhat similar recogniz-
press agreement to the contrary. Mass, ance and furnished a statutory form
Pub. Stat. (1882), c. 193, 3. for the same. This statute, however,
5. Shall be attested by the clerk, whether was repealed by Me. L. (1895), c. 83.
90 Volume 5.
6062. CONFESSION OF JUDGMENT. 6063.
IV. JUDGMENT. 1
I. Upon Confession of Defendant.
a. In Courts of Record.
(i) IN GENERAL.
Form No. 6062.*
The State of Alabama, \ ~. .. ^ ,-> AT- on<r
D I Co ntv C %rcult Court, December Term,. i8P7.
against
Richard Roe.
And now at this day comes the plaintiff John Doe, by his attorney,
and comes also the defendant Richard Roe in his own proper person,
and the said defendant confessing that there is due from him to the
said John Doe the sum of fifty dollars [as the plaintiff in his com-
plaint claims], 3 and authorizes judgment to be entered against him
in favor of the said John Doe for that sum. It is therefore con-
sidered and adjudged by the court that the plaintiff recover against
the said defendant the sum of fifty dollars aforesaid by him con-
fessed, and the further sum of ten dollars costs, and for which let
execution issue.
Form No. 6063.*
In the Superior Court of the City and County of San Francisco,
State of California.
1. For forms of judgment, generally, Stipulating Against Issuance of Execu-
consult the title JUDGMENTS. tion. A stipulation in the confession
Pennsylvania. In James v. Crown- that no execution shall issue within a
over, (Pa. 1886) 6 Atl. Rep. 42, the time specified does not necessarily viti-
defendant authorized and confessed ate the judgment. Merchants Nat.
judgment in a promissory note, as fol- Bank v. Newton Cotton Mills, 115 N.
lows: Car. 507.
"Mifflintown, Pa., October /, iSdry. Judgment with stay of execution is
On January /, i8<?6, after date, il given in Robinson's F., p. 100, thus:
promise to pay to the order of John (After the judgment add these -words:*)
Crownover $345, without defalcation, ''and the plaintiff agrees to stay the exe-
value rec'd, and waiving the benefit of cution of this judgment until thejirst
all laws exempting property from levy day of July, 1898."
and sale by execution, and confess 2. Alabama. See list of statutes
judgment for the said amount of Sj-^rj. cited supra, note 2, p. 48, for similar
IVatkin James." provisions in other states.
The note not being paid at maturity, 3. If no suit has been instituted, in-
the attorneys of John Crownover, by sert in place of the words " as the plain-
virtue thereof, appeared for James, and tiff in his complaint claims" the words
confessed judgment against him, where- " due by account," or as the case may
upon the prothonotary made the fol- be.
lowing entry on the record : " I here- 4. California. Code Civ. Proc.
by enter judgment against Watkinjames (1897), 1132. See also list of statute?
for $545, which entry is founded on a cited supra, note 2, p. 48, for similar
judgment note dated October i, 1^85, provisions in Idaho, Iowa, Montana,
and payable January /. I &S6, with costs Nevada, South Carolina, Utah, Wash-
of suit, and waiving exemption." ington, and other states.
91 Volume 5.
6064. CONFESSION Of JUDGMENT. 6065.
John Doe, plaintiff,
against
Richard Roe, defendant.
In this action the defendant, Richard Roe," 1 having filed his con-
fession of judgment wherein he authorizes and consents that judg-
ment be entered in favor of the plaintiff, John Doe, for the sum of
one thousand dollars; it is therefore, by reason of the law in the
premises aforesaid, ordered, adjudged and decreed that John Doe,
the said plaintiff, do have and recover of and from Richard Roe, the
said defendant, the sum of one thousand dollars, with interest thereon
at the rate of six per cent, from the date hereof until paid, together
with the sum of ten dollars, costs herein.
Calvin Clark, Clerk,
By Daniel Clark, Deputy Clerk.
Dated the ninth day of February, 1 897.
Form No. 6064."
In the District Court of the First Judicial District for the State
of Idaho, in and for the County of Shoshone.
In the matter of the Judgment
by Confession
Richard Roe
to
John Doe.
In this action, the defendant having filed his confession of judg-
ment {continuing and concluding as in Form No. 606$).
Form No. 606 5. 3
District Court, Second Judicial District, County of Ramsey.
John Doe, plaintiff,
against
Richard Roe, defendant.
On filing the within confession and statement made by Richard
Roe, it is adjudged by the court that John Doe, in whose favor said
1. Kecord must show that all of the lars, with three dollars costs and fifteen
defendants who are to be bound have dollars disbursements, making in all
actually confessed judgment, or that the sum of five hundred and eighteen
some of them particularly named have dollars. Calvin Clark, Clerk,
done so. Elledge v. Bowman, 5 J. J. Oliver Ellsworth, Plaintiff's Attorney.
Marsh. (Ky.) 595. Dated the ninth day of February,
2. Idaho. Rev. Stat. (1897), % 5060. l80<?."
3. Minnesota. Stat. (1894), 6077. In South Carolina, thus:
See also list of statutes cited supra, " The State of South Carolina, County
note 2, p. 48. of York.
Similar judgments are indorsed upon John Doe, plaintiff,
confessions in code states of the New against
York class; thus in New York the Richard Roe, defendant,
judgment, omitting the formal parts, On filing the within statement and
may be as follows: confession, it is adjudged by the court
" On filing the within statement and that the plaintiff do recover against
confession, it is adjudged by the court the defendant the sum of five hundred
that the plaintiff do recover against the dollars, with five dollars costs and fif-
defendant the sum of five hundred dol- teen dollars disbursements, making in
92 Volume 5.
6066. CONFESSION OF JUDGMENT. 6066.
confession is made, recover against the said Richard Roe' 1 the sum of
five hundred dollars, and ten dollars costs and disbursements, amount-
ing in all to the sum of five hundred and thirty dollars.
Dated the ninth day of February, iS98*
Calvin Clark, Clerk of District Court.
Form No. 6o66. 3
In the Circuit Court of Jackson County, Missouri, at Kansas City,
Monday, December 5, A. D. iS87.
Mary Samter, plaintiff, \
against V No. 10,860.
Max Blank, defendant. )
Now at this day comes plaintiff, by attorney, and files a statement
in writing for confession of judgment made and signed by the defend-
ant and verified by his affidavit to the following effect: Stating that
the amount of $512.45 for which judgment may be rendered, and
authorizing the entry of judgment thereon, and stating concisely the
facts out of which the money due or to become due arose, and show-
ing that the sum confessed therefor is justly due or to become due.
And the court being satisfied that the defendant executed the said
statement in writing and made the affidavit required thereto, it is,
therefore, considered and adjudged by the court that the said plain-
tiff have and recover from the said defendant the sum so confessed,
with interest thereon at the rate of ten per cent, per annum, the rate
specified in the notes mentioned in the statement, together with the
costs of the suit incurred and expended, and have thereof execution.
all the sum of five hundred and twenty When the action is against one or
dollars. Calvin Clark, Clerk. more persons jointly liable, judgment
Oliver Ellsworth, Plaintiff 's Attorney, may be given on the confession of one
Dated the ninth day of February, or more defendants against all the de-
i89<?." fendants thus jointly liable, whether
In Weinges v. Cash, 15 S. Car. 48, in- such defendants have been served with
dorsement appeared upon the paper the summons or not, to be enforced
containing the statement and affidavit only against their joint property, and
as follows: " Allan E. Cash v. Robert G. against the joint and separate property
Ellerbe. Prince, Plaintiff's Attorney, of the defendant making the confession.
Confession. South Carolina, Chester' Hill's Anno. Laws Oregon (1892), 252.
field County. Roll 844. On filing the See also list of statutes cited supra,
within statement and confession, it is note 2, p. 48.
adjudged by the court that the plain- 2. Time of Entering. At any time
tiff do recover against the defendant within three years after the statement
the sum of fifteen thousand dollars, with is verified it may be filed with the
five dollars costs and fifteen dollars dis- county clerk. Thereupon the clerk
bursements, making the sum of fifteen must enter in like manner, as a judg-
thousand and twenty five dollars. 28th ment is entered in an action, a judg-
January, 1879. ment for the sum confessed, with costs,
Thomas F. Malloy, Clerk. which he must tax, to the amount of
Judgment signed and entered 28th fifteen dollars, besides disbursements
January, 1879. taxable in an action. But a judgment
Thomas F. Malloy, clerk." shall not be entered upon such a state-
1. Where all the joint debtors do not ment after the defendant's death. Birds,
unite in the confession of judgment Rev. Stat. N. Y. (1896), 74.
for a joint debt, the judgment must be 3. Missouri. Rev. Stat. (1889), 2229.
entered against those only who con- See list of statutes cited supra, note
fessed it. Birds. Rev. Stat. N. Y. 2, p. 48, for similar provisions in other
(1896), p. 1740, 77. states.
3 Volume 5.
6067. CONFESSION OF JUDGMENT. 6068.
Form No. 6067.'
In the District Court of Coif ax County, in the State of Nebraska.
John Doe, plaintiff, }
against V Judgment.
Richard Roe, defendant. )
Now on this ninth day of February, iS98, comes the plaintiff by his
attorney ; also comes Jeremiah Mason, one of the attorneys of this
court, on behalf of the defendant, Richard Roe, and by virtue of a
warrant of attorney for that purpose duly executed by the said Richard
Roe, in this action filed and now produced to the court, and waives
the issuing and serving of process, and, with the consent of the plain-
tiff, confesses that the said Richard Roe is justly indebted to the said
plaintiff in the sum of five hundred dollars, with interest thereon at
the rate of six per cent, per annum from the ninth day of February,
i8P7, as claimed in the petition.
It is therefore considered and adjudged by the court that the plain-
tiff John Doe recover of and from the defendant Richard Roe said sum
of five hundred dollars, with interest thereon at the rate of six per
cent, per annum from the ninth day of February, i897, together with
his costs herein expended, taxed at ten dollars.
John Marshall, Judge.
*' > Superior Court.
Form No. 6o68. 2
(Precedent in Sharp v. Danville, etc., R. Co., 106 N. Car. 313.)
State of North Carolina,
Rockingham County,
Thomas R. Sharp, Plaintiff, )
v. \ Judgment.
The Danville, M. and S. W. R. R. Co., Deft. )
On filing the foregoing statement and confession, duly verified,
together with the exhibits therein referred to, it is ordered and ad-
judged by the court that the plaintiff, Thos. R. Sharp, do recover
against the defendant, The Danville, Mocksville and Southwestern Rail-
road Company, the sum of sixteen thousand eight hundred and sixty-seven
dollars and sixty cents, with interest on $8,017.60 thereof from the
14th day of Noz>ember, i&81, and on $4,600 thereof from the 26th day
1. Nebraska. Every attorney who "Upon filing the foregoing state-
shall confess judgment in any cause ment and confession, it is ordered and
shall, at the time of making such con- adjudged by the court that the plaintiff,
fession, produce the warrant of attor- The Merchants National Bank of Rich-
ney for making the same to the court, mond, Va., do recover of the defendant,
and the original, or a copy thereof, shall The Newton Cotton Mills, the sum of
be filed with the clerk. Neb. Comp. five thousand three hundred and seventy-
Stat. (1897), 6015. See also list of one dollars and sixty cents, with inter-
statutes cited supra, note 2, p. 48. est at 8 per cent, iromjuly iq, i80j>,
2. North Carolina. Code (1883), and costs of action.
570. See also list of statutes cited J. F. Herman, Clerk Superior Court.
sitpra, note 2, p. 48. July 31, i80j."
Precedent of such a judgment in For other precedents consult McAden
Merchants Nat. Bank v. Newton Cot- v. Hooker, 74 N. Car. 26; Uzzle v. Vin-
ton Mills, 115 N. Car. 521, was as fol- son, in N. Car. 139.
lows:
94 Volume 5.
6069. CONFESSION OF JUDGMENT. 6070.
of November, iS85, until paid, according to the terms of said con-
fession, as a security for the plaintiff's contingent liability in said
amount, together with $5 cost thereof [and $15 disbursements]. 1
John T. Pannill, C. S. C.
This November 7th, i&85.
Form No. 6069.*
State of North Dakota. \ T ,-,. , - . -, . , 7 T ,. . , -.. . . .
County of JBurleigh. \ SS< In Dlstrlct Court ' Stxth J udicial District.
John Doe, plaintiff, )
against > Judgment on Confession.
Richard Roe, defendant. )
Whereas the defendant herein, Richard Roe, has, by his written
statement of confession, duly verified by his own signature and oath,
confessed that he is justly indebted to the said plaintiff in the sum of
two hundred and fifty dollars, and whereas the court, upon reading the
said statement and confession, has ordered that judgment be entered
by the clerk in accordance therewith, and said confession of judg-
ment having been duly filed,
Now therefore, on motion of Oliver Ellsworth, attorney for said
plaintiff, it is ordered and adjudged that the said plaintiff do have
and recover of and from the said defendant, Richard Roe, the said
sum of two hundred and fifty dollars, together with forty-five dollars for
costs and disbursements, amounting in the whole to the sum of two
hundred and ninety-five dollars.
Witness, Hon. John Marshall, judge of said court, and my hand and
the seal of said court, \h\stenth day of June, A. D. iS97.
Calvin Clark, clerk.
Form No. 6070.*
John Doe, plaintiff,
against
Richard Roe, defendant.
This day came as well the plaintiff by his attorney as the defend-
ant in his own proper person, and the said defendant acknowledges
the plaintiff's action for the debt and interest in the said writ men-
tioned and the costs. Therefore it is considered that the said plain-
tiff recover against the said defendant the sum of five hundred dollars,
with interest thereon to be computed after the rate of six per cen-
tum per annum from the ninth day of February, i897, until paid, and
his costs by him about his suit in this behalf expended and the said
defendant in mercy, etc. f
1. Disbursements should be included 8. In Virginia and West Virginia^ in
in the judgment. The words enclosed the clerk's office, judgment upon confes-
by [ ] are not found in the reported sion may be entered Va. Code (1887),
case, but are added to complete the 3283; W. Va. Code (1887), p. 787, 43.
form. These judgments may be modeled
2. North Dakota. Rev. Codes (1895), after the forms of the common-law
6132. judgments by cognovit, given in Form
South Dakota. Dak. Comp. Laws No. 6071 and the notes thereto. See
(1887), 5537 et seq.; see also list of slat- also Robinson's F. (Va.), pp. 7, 97-100;
utes cited supra, note 2, p. 48. Sands' F. (Va.), pp. 291-295, 499, 500.
95 Volume 5.
6071.
CONFESSION OF JUDGMENT.
6071.
(2) BY COGNOVIT AT COMMON LAW. 1
Form No. 6071.*
In the Queen's Bench (or Common Pleas or Exchequer of Pleas').
On the day of , A. D. (date of the declaration?)
to wit. John Doe, by Oliver Ellsworth, his attorney, (etc.j
proceed to the end of the declaration, and then, on a new line, thus:')
And on the day of , A. D. (day of signing judg-
ment} the defendant in his proper person says, that he cannot deny
In Covenant, the judgment may be as
follows: (Title oj cause as in Form No.
6070.} " This day came as well the plain-
tiff by his attorney as the defendant in
his own proper person, and they do
agree that the plaintiff hath sustained
damages by occasion of the defendant's
breach of his covenant in the said writ
mentioned to Jive hundred dollars, with
interest on the said damages to be com-
puted at the rate of six per centum per
annum from the ninth day of February,
1897, until paid, besides his costs; there-
fore " (concluding as in Form No. 6076).
If defendant arrested was surrendered
by bail, after the f add these words:
" Whereupon Samuel Short, the bail of
the said defendant, surrendered him to
the custody of the sheriff oiAlbemarle
county, now here present; therefore, the
said Samuel Short, from his undertak-
ing as bail as aforesaid, is discharged,
and on the prayer of the plaintiff the
said defendant is committed to the
custody of the sheriff of this county, to
remain therein until he shall have satis-
fied this judgment or shall otherwise be
discharged by due course of law."
If defendant arrested is not prayed into
custody, the judgment may be as follows:
(Title of cause as in Form No. 6070.)
" The defendant, being arrested and in
the custody of the sheriff of Albemarle
county upon a writ of capias ad respon-
dendum issued herein, acknowledges
(continuing as in Form No. 6070 to f).
And the defendant is not prayed into
custody, and with the consent of the
plaintiff is discharged therefrom."
On scire facias, the judgment may be
as follows: (Title of cause as in Form
No. 6070.) "This day came the parties
by their attorneys, and by their mutual
consent it is considered by the court that
the plaintiff may have execution for five
hundred dollars, the damages and costs
in the writ aforesaid specified, and also
that the plaintiff recover against the
defendant his costs by him expended in
suing out and prosecuting this writ."
1. A cognovit is an unsealed confession of
judgment given to plaintiff after suit is
brought. And. L. Diet., citing 3 Bl.
Com. 397.
2. Judgment by cognovit, as set out in
the text in Form No. 6071, is in Chit.
F. (1847), p. 310, and may readily be
adapted to use in such jurisdictions as
follow the common-law practice.
In assumpsit, after issue, with a relicta
verificatione, the judgment by cognovit
as set out in Chit. F. (1847), p. 311, is as
follows: (Proceed to the end of the issue in
the usual manner, and then thus:) " At
which day come here, as well the plain-
tiff by his attorney aforesaid as the
defendant in his own proper person, and
hereupon the defendant, relinquishing
his said plea by him above pleaded,
saith that he cannot deny the action of
the plaintiff, nor but that the defendant
did promise " (concluding as in Form
No. 6071).
In debt on bond, the judgment by cog-
novit as set out in Chit. F. (1847), p.
311, is as follows: (Proceed as in Form
No. 607 f to *; then add:) " nor but the
said writing obligatory is the deed of
the defendant, nor but that he owes to
the plaintiff the said sum of 1,000 above
demanded, in the manner and form as
the plaintiff hath above alleged. There-
fore it is considered that the plaintiff
do recover against the defendant his
said debt, and also 25 for his damages,
which he hath sustained, as well on
occasion of the detaining the said debt
as for his costs and charges by him
about his suit in this behalf expended,
by the court here adjudged to the plain-
tiff, and with his assent: and the defend-
ant in mercy, etc." (concluding as in
Form No. 6071).
In Debt, as to part with remittitur as to
residue, the judgment by cognovit as set
out in Chit. F. (1847), p. 311, is as follows:
(Proceed as in Form No. 6071 to *; then
add:) "nor but that he the defendant
does owe to the plaintiff the sum of
joo, parcel of the said sum above
96
Volume 5.
6072. ' CONFESSION OF JUDGMENT. 6072.
the action of the plaintiff, nor but that he the defendant did promise
in manner and form as the plaintiff hath above alleged;* nor but that
the plaintiff hath sustained damage, on occasion of the not perform-
ing of the said promises in the said declaration mentioned, to 1,000,
as by the said declaration is above alleged: And hereupon the plain-
tiff prays judgment, and his damages so acknowledged, together with
his costs and charges by him about his suit in this behalf expended,
to be adjudged by him, etc. : Therefore it is considered that the plain-
tiff do recover against the defendant his damages aforesaid to 1,000
in form aforesaid acknowledged, and also 25 for his said costs and
charges by the court here adjudged to the plaintiff, and with his
assent; which said damages, costs and charges, in the whole, amount
to 1,025; and the said defendant in mercy, etc.
(/ the margin of the roll, opposite the words " Therefore it is con-
sidered," write "Judgment signed the day of , 18 ; "
also in the margin opposite the words "mercy, etc.," at the end, write
"Mercy.")
b. Before Justice of the Peace.
Form No. 6072.'
rp . f , ) Before Abraham Kent, a Justice of the Peace
*f* > r yojA rlzona , ( within and for the sajd county, the twentieth
County of Gila. c ^ , on _, ''
) day of December, i897.
John Doe, plaintiff,
against
Richard Roe, defendant.
This day came the above named plaintiff, by his attorney Jeremiah
Mason, and also comes the above named defendant Richard Roe, in
his own proper person, and acknowledges the plaintiff's cause of
action, and that he is justly indebted to the said plaintiff in the
demanded: And upon this the plain- etc., and the damages aforesaid in form
tiff freely here in court remits to the aforesaid remitted, etc." (concluding as
defendant the sum of 500, residue of in Form No. 6071).
the said sum above demanded, and all In debt, after issue, with a relicta
damages by him sustained on occasion verificatione, the judgment by cogno-
of the detention of the said sum of vit given in Chit. F. (1847), p. 312, is as
500, residue, etc., and prays judg- follows: (Proceed to the end of issue
ment for the said debt of 500, parcel, in the usual manner, and then add:)
etc., so acknowledged as aforesaid, to- "At which day come here as well
gether with his costs and charges by the plaintiff by his attorney aforesaid
him about his suit in this behalf ex- as the defendant in his own proper
pended, to be adjudged to him, etc. person; and hereupon the defendant,
Therefore it is considered that the relinquishing his said plea by him
plaintiff do recover against the defend- above pleaded, says that he cannot
ant the debt of 300, parcel, etc., in deny the action of the plaintiff, nor
form aforesaid acknowledged, and also but" (concluding as in judgment by cogno*
23 for his damages, which he hath vit in debt on bond as set out supra this
sustained as well on occasion of the note).
detaining the said debt of joo so 1. Arizona. Rev. Stat. (1887), 1444.
acknowledged as aforesaid as for his This form will also be found sufficient
said costs and charges by the court under Tex. Rev. Stat. (1895), art. 1648.
here adjudged to the plaintiff, and with See also list of statutes cited supra, note
his assent; and the said defendant in 2, p. 48, for similar provisions in
mercy, etc. And let the defendant be California, Idaho, Montana, Nevada,
acquitted of the sum of 300, residue, Washington, and other states.
5 E. of F. P. 7. 87 Volume 5.
6073. CONFESSION OF JUDGMENT: 6073.
sum of forty-eight dollars. It is therefore considered that the said
plaintiff have and recover from the said defendant the said sum of
forty-eight dollars as aforesaid confessed, with interest at the rate of
seven per cent, per annum and for his costs by him about his suit in
this behalf expended, and that he have execution therefor. 1
Abraham Kent, Justice of the Peace.
Form No. 6073.*
(Sand. & H. Dig. Ark. (1894), p. 1651.)
[In Justice's Court, Garland County, Arkansas, before Abraham
Kent, Justice of the Peace.
John Doe \
against V Judgment by Confession.] 3
Richard Roe. )
On this third day of May, i8#4 comes the said John Doe as well
as the said Richard Roe, and the said John Doe files before me a note
against the said Richard Roe as follows: (Here set out copy of note),
and the said Roe files in writing his confession of judgment wherein
he says that he is indebted to the said Doe in the sum of fifty dollars
debt and nine dollars and fifty cents interest due upon said note,
and consents that judgment be rendered against him for that sum;
all of which being assented to by the said Doe, it is therefore con-
sidered and adjudged that the saidZW have and recover of the said
Roe the sum of fifty-nine dollars and fifty cents for his debt and
interest and all his costs in and about this suit expended.
\Abraham Kent, Justice of the Peace.] 3
1. Where the party appears in person identify a writing obligatory, it will not
or by agent or attorney before a justice invalidate the judgment if in the con-
of the peace without issuance or service fession it be called a "note." Ex p.
of process and confesses judgment, the Hays, 6 Ark. 419. The judgment in
plaintiff, his agent or attorney shall this case was as follows:
make and file an affidavit in writing " Louisa Hogins , administratrix"}
signed by him to the justness of his of A.D. Hogins, deceased, I .-. ,
claim. Ariz. Rev. Stat. (1887), 1444; vs.
Tex. Rev. Stat. (1895), art. 1648. And A. J. Hays.
where such judgment is confessed by On this day appeared Louisa Hogins,
agent or attorney the warrant of at- administratrix of A. D. Hogins, de-
torney shall be filed with the justice and ceased, and filed a writing obligatory,
noted in the judgment. Ariz. Rev. dated the twenty-fifth day of December,
Stat. (1887), 803; Tex. Rev. Stat. (1895), 18^2, and due one day after date, pay-
art. 1649. See also list of statutes cited able to A. D. Hogins for eighty-six dol-
supra, note 2, p. 48. lars, and also appeared A. J. Hays, the
2. Arkansas. Sand. & H. Dig. Ark. defendant, and filed here in court his
(1894), 4379. See also list of statutes confession of judgment in writing,
cited supra, note 2, p. 48. which is allowed by the court, and it
Sufficiency of Judgment. Where a is considered by the court that said
party appears and files a written con- plaintiff have and recover of the de-
fession of judgment, such a description fendant the sum of eighty-six dollars
of the cause of action in the confession debt and five dollars and sixteen cents
as will identify it is sufficient. The damages with all costs, etc., this eleventh
party is not required to state the tech- April, 1845- John James, J. P."
nical character of the instrument upon 3. The words enclosed by [ ] will not
which the confession is made. The be found in the form given in the stat-
amount, date and time of payment be- ute, but have been added to render the,
ing given with sufficient certainty to form complete.
98 Volume 5.
6074. CONFESSION OF JUDGMENT. 6076.
Form No. 6074.'
John Doe \
against V Before Abraham Kent, Justice of the Peace.
Richard Roe. )
New Haven County, ss. December tenth, i8P7.
On this day personally appeared before me, Abraham Kent, justice
of the peace within and for the county of New Haven, Richard Roe,
and acknowledged that he is indebted to John Doe in the sum of fifty
dollars on a certain promissory note (or other cause of indebtedness),
as follows: (Here set out the note or cause of indebtedness), and con-
fesses judgment in favor of the said John Doe against himself for the
aforesaid sum of fifty dollars and seventy-five cents costs. Therefore,
it is considered and adjudged that the said John Doe have and recover
against the said Richard Roe his damages and costs aforesaid acknowl-
edged and confessed, and that the said plaintiff have execution
therefor.
Abraham Kent, Justice of the Peace.
Form No. 6075.*
(Fla. Rev. Stat. (1892), 548.)
(Annexed to or indorsed upon the confession of judgment is entered the
following judgment:^ Judgment is hereby rendered against Richard
Roe, defendant, in favor of John Doe, plaintiff, for the sum of fifty
dollars, and fifty cents damages, and three dollars and fifty cents costs,
this ninth day of February, \W8.
Abraham Kent, Justice of the Peace.
Form No. 6 o 7 6 . 4
Coimf n tS ' \ SS> Before Abraham Kent, Justice of the Peace.
Jonn Doe \
against > Upon Claim for Twenty-five Dollars due on an Account.
Richard Roe, )
Whereas, the said John Doe, plaintiff above named, this ninth day
of February, \W8, personally came before me, and the said Richard
1. Connecticut. Gen. Stat. (1888), for a designated amount, and the
663. See list of statutes cited supra, judgment is thereupon so given, it is a
note 2, p. 48. judgment confessed. Such expressions
2. Florida. Rev. Stat. (1892), 1609, as "I confess judgment for $/oo," or
subs. 6. See also list of statutes cited " I agree that judgment shall be given
supra, note 2, p. 48. against me for $/oo," are sufficient.
3. For form of confession of judg- Boettcher v. Bock, 74 111. 334.
ment before a justice of the peace in Where the docket shows that defend-
Florida see supra, Form No. 6038. ant agreed that plaintiff should have
4. Illinois. Starr & C. Anno. Stat. judgment for a given sum and that
(1896), p. 3083, par. 66. See also list of the plaintiff accepted the judgment ten-
statutes cited supra, note 2, p. 48. dered, this will be sufficient. Boett-
No technical formality is required, un- cher v. Bock, 74 111. 332.
der the Illinois statute, in the practice It is sufficient to show that the court
in the justices' courts, and when a had jurisdiction of the parties and of
party ther,e formally consents that all the subject matter, and that the
judgment shall be given against him matter was adjudicated, the amount
99 Volume 5.
6077. CONFESSION OF JUDGMENT. 6078.
Roe waived the issuance and service of process; and the said John
Doe and the said Richard Roe have entered their appearance in this
cause, and the said Richard Roe has acknowledged that he is indebted
to and owes the said John Doe the sum of twenty-Jive dollars, said
money being due upon a certain account for goods, wares and mer-
chandise to him the said Richard Roe sold, furnished and delivered,
during the year i8#7, as per statement and account hereunto an-
nexed, and whereas, the said John Doe and Richard Roe have this
day requested that judgment be rendered against the said Richard
Roe for the amount of said account; it is therefore considered and
adjudged that the said John Doe, plaintiff above named, do have and
recover of the said Richard Roe, defendant above named, the sum
of twenty-five dollars, and the sum of five dollars costs, taxed in this
proceeding, 1 amounting in all to the sum of thirty dollars.
Witness my hand this ninth day of February, i8P&
Abraham Kent, Justice of the Peace.
Form No. 6077.*
John Doe \
against >
Richard Roe. )
Judgment confessed this ninth day of February, i&98, by Richard
Roe, the above named defendant, in favor of John Doe, the above
named plaintiff, for the sum of fifty dollars, with interest upon such
sum from the date of this judgment until time of payment of the
same.
Abraham Kent, Justice of the Peace
in and for Allegany County, Maryland.
Form No. 6078."
Cheshire, ss.
On this first day of September, A. D. iS97, the above named John
Doe and Richard Roe voluntarily appeared before me, a justice of the
peace within and for the said county, and subscribed the above
agreement. It is therefore considered that the said Richard Roe
have execution against the said John Doe for the sum of fifty dollars
as confessed above (or that execution be stayed until the first day of
January, 1898.}
Abraham Kent, Justice of the Peace.
found was confessed to be owing to 365; Campbell v. Randolph, 13 111. 313.
the plaintiff, a recovery and the award So that where a party stated " that he
of execution. Bartlett v. Powell, 90 could not deny the plaintiff's demand,"
111. 331. such admission conferred no authority
Consent to Entry of Judgment. A to enter a judgment by confession,
judgment entered upon the admission Elliott v. Daiber, 42 111. 467, 468.
by the defendant of an amount due is 1. Costs. Neither the items of costs
not a judgment by confession. A con- nor the atnount thereof need be stated
fession of judgment is more than an in the judgment. Simms v. Klein, I
acknowledgment that a certain amount 111. 371.
is justly due; it is a consent to the en- 2. Maryland. Pub. Gen. Laws(t888),
try of judgment. Dearborn Laundry art. 52, 33.
Co. v. Chicago, etc., R. Co., 55 111. App. 3. New Hampshire. Every justice
441; Goddard v. Fisher, 23 111. App. to whom a confession of debt is made
100 Volume 5.
6079. CONFESS/ON OF JUDGMENT. 6080.
Form No. 6079.'
John Doe, plaintiff, ) Before Abraham Kent, Esq., one of the
against > Justices of the Peace of the Town of
Richard Roe, defendant. ) Huntington, County of Suffolk, New York.
Whereas, the defendant above named, Richard Roe \and the plain~
tiff above named, John Doe\, has (or have) personally appeared before
me, and the said Richard Roe having filed his confession of judgment
herein wherein he consents that judgment be entered in this cause
in favor of the plaintiff, John Doe, for the sum of seventy-five dollars
upon a promissory note, as is evidenced by his said" statement and
confession in writing heretofore with me filed in this cause [accom-
panied by the affidavits both of the said John Doe and the said
Richard Roe, as by section 3011 of the Code of Civil Procedure
required] ; 2 it is now therefore considered and adjudged that the
said John Doe .do have and recover of and from the said Richard Roe
the sum of seventy-five dollars, the sum confessed, and the sum of
fifteen dollars costs, in this behalf incurred (here specifying, by way of
items, the costs),* amounting in all to the sum of ninety dollars. Judg-
ment entered this ninth day of February, iS98.
Abraham Kent, Justice of the Peace.
Form No. 6080. 4
State of Vermont,
Washington County, f
Be it remembered that at Montpelier, on this first day of July,
A. D. i8#7, Richard Roe, of Montpelier aforesaid, personally appeared
before me, Abraham Kent, justice of the peace within and for the
said county of Washington, and acknowledged himself indebted to John
Doe, of Montpelier aforesaid, without (or with) antecedent process, on a
note in the sum of ten dollars, bearing date the first day of September,
A. D. i &96, executed and delivered by the said Richard Roe to the
said John Doe, and payable to the said Doe or order on demand, with
interest, in the sum of ten dollars and fifty cents; and whereupon it
is adjudged by the said justice that said John Doe recover of the
said Richard Roe the sum of ten dollars and fifty cents and twenty-five
cents more for taking the record of such confession, whereof the said
John Doe may have execution.
Abraham Kent, Justice of the Peace.
shall keep a true and full record required to accompany the statement
thereof, signed and certified by him- and confession. N. Y. Code Civ.
self. N. H. Pub. Stat. (1891), c. 247, Proc., g 3011.
17. 3. The items of cost should be speci-
1. New York. Code Civ. Proc. fied in the judgment. N. Y. Code Civ.
(1897), 3010 ft seq. See also list of Proc., 3078.
statutes cited supra, note 2, p. 48, for 4. Vermont. Stat. (1894), 1048,
similar provisions in California, Idaho, provides that no judgment shall be
Minnesota, Missouri, Montana, Nevada, rendered upon confession except upon
and other states. specification in writing filed with the
2. Judgment for sum over fifty dollars justice setting forth the claim on which
should refer to the affidavit by statutes judgment is rendered.
101 Volume 5.
6081. CONFESSION OF JUDGMENT. 6082.
2. Upon Confession of Attorney. 1
Form No. 6081 .*
Territory of Arizona, ) Jn tfec ^^ c
County of Gila. \
John Doe, plaintiff,
against
Richard Roe, defendant.
This day came the plaintiff, by his attorney, and filed his complaint
herein, and the said defendant, by Daniel Webster, his attorney duly
constituted by warrant of attorney, comes and in open court con-
fesses that he is indebted to the said plaintiff for the sum of twelve
hundred and fifty dollars, as claimed by the plaintiff in his complaint.
It is therefore considered by the court that the said plaintiff recover
from the said defendant the said sum of twelve hundred and fifty
dollars as aforesaid confessed and that he have execution therefor.
Form No. 6082.*
State of Michigan, )
Circuit Court for the County of Montcalm. j
John Doe }
against >
Richard Roe. )
On reading and filing the promissory note, warrant of attorney, and
declaration in this cause, together with the answer of the said defend-
1. Sufficiency of Judgment. Name of but not necessarily void. See Adam
attorney appearing to confess the judg- v. Arnold, 86 111. 185; Davenport v.
ment need not be shown in the record Wright, 51 Pa. St. 292; Caldwell v.
of the judgment. Russell v. Lillja, 90 Fifield, 24 N. J. L. 150.
111. 330. Where bond has been given, the form
Warrant of attorney to confess judg- of judgment on a warrant of attorney
ment must be shown to be in existence at common law may be found in Chit,
in the entry of judgment by cognovit. F. (1847), p. 316.
Matzenbaugh v. Doyle, 56 111. App. Where bond has not been given, the
343. But the warrant need not be set form of judgment on a warrant of at-
out at length in the transcript. Apple- torney at common law is set out in
gate v. Mason, 13 Ind. 79. It is suffi- Chit. F. (1847), p. 317.
cient that the judgment recite the Form of rule upon warrant of attorney
power of attorney without reciting that to confess judgment at common law is
it was proven. Caruthers v. Caruth- given in Chit. F. (1847), p. 316.
ers, 2 Lea (Tenn.) 270. Form of affidavit to enter up judgment
After obligee's death, judgment upon after a year upon a warrant of attorney
warrant of attorney should be entered at common law is given in Chit. F.
in the name of the executors. Guyer (1847), p. 315.
v. Guyer, 6 Houst. (Del.) 430. 2. Arizona. Rev. Stat. (1887), 802
Attorneys' fees may be included in the et seq. See list of statutes cited supra,
judgment when authorized by the note 2, p. 48, for similar provisions in
warrant of attorney. Sweeney v. other states.
Stroud, 55 N. J. L. 97 ; Campbell 3. Michigan. How. Anno. Stat.
v. Goddard, 123 111. 220: Seligman v. (1882), 7662.
Franco-American Trading Co., 17 Civ. See list of statutes cited supra, note
Proc Rep. (N. Y. Supreme Ct.) 342; 2, p. 48, for similar provisions in other
Moore's Appeal, no Pa. St. 433. states.
For an amount greater than that au- Judgment on confession, or cognovit in
thorized by the warrant is irregular assumpsit, without warrant of attorney
102 Volume 5.
6083. CONFESSION OF JUDGMENT. 6083.
ant, confessing the action of the said plaintiff, to the sum of eight
hundred dollars damages; Therefore, it is considered that the said
plaintiff do recover against the said defendant his damages so con-
fessed as aforesaid, together with his costs and charges by him about
his suit in his behalf expended to be taxed, and that the said plaintiff
have execution thereof.
Carroll Johnson, Circuit Judge.
Form No. 6083.!
In the Circuit Court, Coif ax County, in the State of Nebraska:
John Doe, plaintiff, \
vs. V Judgment.
Richard Roe, defendant. )
Now, on this tenth day of December, i8P7, comes the plaintiff by his
attorney; also comes Daniel Webster, one of the attorneys of this
court, on behalf of the defendant, and by virtue of warrant of attor-
ney for that purpose duly executed by the said defendant in this action
filed, and now produced to the court, and waives the issuing and serv-
ice of process, and, with the consent of the plaintiff, confesses that
the said defendant is justly indebted to the said plaintiff in the sum of
two hundred and fifty dollars, with interest thereon at the rate of seven
per cent, per annum from \hefirst day of June, i&96, as claimed in the
petition. It is therefore considered and adjudged by the court that
the plaintiff recover of and from the defendant the said sum of two
hundred and fifty dollars, with interest thereon at the rate of seven per
cent, per annum from theyr.Wday of June, iS96, together with his costs
herein expended, taxed at forty-eight dollars and thirty-five cents.
John Marshall, Judge.
in Michigan, may be as follows: (Title 2, p. 48, for similar provisions in other
of court and cause as in Form No. 6082.) states.
"The defendant in this cause having Precedent Ohio. In Callen z>. El-
appeared therein, by Jeremiah Mason, lison, 13 Ohio St. 449, the judgment,
his attorney, and confessed the action of omitting formal parts, was as follows :
the said plaintiff, and his damages by "And now of this day, that is to say,
him sustained on account of the non- at the June Term, in the year of our
performance of the several promises Lord one thousand eight hundred and
and undertakings in said plaintiff's twenty-seven, comes the plaintiff by his
declaration mentioned, to the sum of attorney aforesaid, and the plaintiff, by
eight hundred dollars; hereupon said his attorney, having proceeded and
plaintiff prays judgment and his dam- filed here in court his declaration
ages so acknowledged, together with against the said defendants, the de-
his costs and charges by him about his fendants, by George Collins, Esq., their
suit in this behalf expended; Therefore; attorney, come into court, and, by vir-
it is considered and adjudged that the tue of his power of attorney, filed in
said plaintiff do recover against said this court, confessed judgment for the
defendant his damages aforesaid, as defendants for the sum of one thousand
aforesaid acknowledged and confessed, three hundred and ninety-three dollars,
together with his costs and charges and seventy cents in damages; and there-
aforesaid to be taxed, and that said fore it is considered by the court that
plaintiff have execution thereof. the plaintiff recover against the defend-
Carroll Johnson, Circuit Judge." ant his damages aforesaid by them
1. Nebraska. Comp. Stat. (1897), confessed, and his costs by him about
6012-6015. his suit in this behalf expended, ex-
See list of statutes cited supra, note cept the docket fee."
103 Volume 5.
6084.
CONFESSION OF JUDGMENT.
6085.
Form No. 6084.'
(N. J. Gen. Stat. (1896), p. 173, 5.)
Essex County Circuit Court, of the term of December, in the year of
our Lord one thousand eight hundred and ninety-seven.
John Doe }
against > In Debt on Bond and Warrant of Attorney.
Richard Roe. )
The defendant's appearance to this action is entered and judgment
confessed to the plaintiff for the sum mentioned in the above obliga-
tion by virtue of the warrant of attorney thereunto annexed and pur-
suant to the directions of an act entitled "An act directing the mode
of entering judgments on bond with warrant of attorney to confess
judgment," whereby it is considered that the s,^^ John Doe, the above
named plaintiff, do recover against the said Richard Roe, the above
named defendant, the sum of one thousand dollars debt and four dol-
lars costs of suit. Judgment signed and ordered entered this tenth
day of December in the year of our Lord one thousand eight hundred
and ninety-seven.
John Marshall, Circuit Judge. 2
Form No. 6085.*
John Doe, plaintiff, )
against
Richard Roe, defendant. )
1. New Jersey. Gen. Stat. (1896), p.
172, I et seq.
Another form of entry of judgment in
New Jersey may be as follows:
"Be it remembered that on this ninth
day of February, I&Q&, before me, the
subscriber, a supreme court commis-
sioner, personally appeared Jeremiah
Mason, attorney for Richard Roe, the de-
fendant in the above entitled cause, and
produced an original warrant of attor-
ney.executed by the said defendant, and
the copy whereof is hereto annexed, and
by virtue of said warrant of attorney ap-
peared to this action, received the fore-
going declaration, confessed the said
action and a judgment thereon in favor
of John Doe, the plaintiff, against Rich-
ard Roe, the defendant, for the sum of
jive hundred dollars damages and costs
of suit to be taxed; whereupon leave is
given to enter up proceedings of said
warrant of attorney and final judgment
against the said Richard Roe in favor of
the said plaintiff, Jo An Doe, for the sum
of five hundred dollars damages and
costs of suit to be taxed.
Judgment signed and ordered to be
entered this ninth day of February, i8<?<?.
I do hereby certify that at the time of
signing the foregoing judgment the
affidavit of John Doe, the said plaintiff
in the foregoing action, taken as re-
quired by the statute and hereto an-
nexed, was produced to me on the ninth
day of February, i9>q8.
John Marshall,
Supreme Court Commissioner."
Against two persons on the confession
of one is improper. Westfall v. Dono-
ven, 2 N. J. L. 64; Little v. Moore, 4
N. J. L. 82; Mills v. Sleght, 5 N. J. L.
9 N. J.
L. 249; Ballinger v. Sherron, 14 N. J. L.
653; Wiggins v. Klienhans, 9
144. But such judgment is good against
the one who confesses it. Wood v. Og-
den, 16 N. J. L. 453.
Against one after his decease is im-
proper. Stull v. Abbott, 15 N. J. L.
339; Milnor v. Milnor, 9 N. J. L. 93;
Wood v. Hopkins, 3 N. J. L. 263.
2. May be signed and ordered by su-
preme court commissioner. N. J. Gen.
Stat. (1896), p. 173, 6.
8. Virginia and West Virginia. See
supra, note 3, p. 95.
In detinue, judgment may be as fol-
lows: (Commencing as in Form No. 6085,
and continuing down to*) " saith that
he cannot gainsay the plaintiff's action.
Therefore it is considered by the court
that the plaintiff recover against the
104
Volume 5.
6086. CONFESSION OF JUDGMENT. 6086.
This day came the parties by their attorneys, 1 and thereupon the
said defendant, relinquishing his former plea,* acknowledgeth
the plaintiff's action against him, and further acknowledgeth that the
plaintiff hath sustained, by occasion of the nonperformance of the
assumptions made by him, damages to the amount of five hundred
dollars; and he, the said defendant, agrees that judgment be entered
for the plaintiff for the damages so acknowledged, with interest
thereon from the ninth day of February, i8P7, till paid, and the costs.
Thereupon, with the assent of the plaintiff, it is considered by the
court that the plaintiff recover against the defendant five hundred
dollars, the damages aforesaid, so as aforesaid acknowledged, with
interest thereon, to be computed after the rate of six per centum per
annum, from the ninth day of February, i87, till paid, and his costs by
him about his suit in this behalf expended. And the said defendant
in mercy, etc.
Form No. 6086.*
In the Circuit Court for Vernon County.
John Doe, plaintiff, \ j udgment on Warrant o f Attorney, without
against V 'action
Richard Roe, defendant. l
Be it remembered that on the ninth day of February, i89c?, came
the plaintiff in the above entitled cause by Oliver Ellsworth, his attor-
ney, and filed his complaint against the defendant in the above
entitled cause, and together with said complaint said plaintiff also
filed an affidavit, a promissory note, a warrant of attorney, and an
defendant the./fzv cows named in the tiff's action, and the cause remains
declaration mentioned, if they may be without judgment upon that confession
had, or the price of them, if they may not until a final judgment can be given as
be had, which is agreed by the parties to all the defendants."
to be five hundred dollars, together with 1. By attorney in fact, may be as fol-
one dollar damages by them agreed for lows: (Title of cause as in Form No.
detaining the said cows, and his costs" 6085). " This day as well the plaintiff
(concluding as in Form No. 6085). by his attorney as the defendant by
In trespass, assault and battery, the Samuel Short, his attorney in fact afore-
judgment may be as follows: (Com- said, acting under a power of attorney
mencing as in Form No. 6085, and contin- under the hand and seal of said defend-
uing to*)" saith that he cannot gainsay ant, acknowledges" (continuing as in
the plaintiff's action, nor but that he is Form No. 6oj).
guilty in manner and form as the plain- Or as is given in Robinson's F., p.
tiff against him hath complained; 101: "This day came the plaintiff by
and the parties agree that the plaintiff his attorney and produced the power of
hath sustained damages by that occa- attorney for confessing judgment in
sion \o five hundred dollars, besides his this action under the hand and seal of
costs. Therefore it is considered by the defendant, attested by Samuel Short,
the court" (concluding as in Form No. and approved the day of the execution
6085). thereof. Whereupon JeremiaA Mason
Judgment against several defendants, appeared for the defendant by virtue of
where the action is confessed by one, is said power, and the defendant by his
given in Robinson's F., p. 100, as fol- said attorney acknowledges the plain-
lows, omitting formal parts: tiff's action for, etc. Therefore, etc."
"This day came, etc., and the de- 2. Wisconsin. Sanb. & B. Anno,
fendant, Richard Roe, relinquishing his Stat. (1889), 2895 etseq. See also list
former plea, acknowledges the plain- of statutes cited supra, note 2, p. 48.
105 Volume 5.
6086. CONFESSION OF JUDGMENT. 6086.
answer of the said defendant, which said complaint, affidavit, promis-
sory note, warrant of attorney and answer are as follows, to wit:
{Here set out copy of complaint. ) x
{Here set out copy of affidavit}*
{Here set out copy of promissory note^p
{Here set out copy of warrant of attorney.}*
(Here set out copy of defendant 's answer.)*
State of Wisconsin.
In the Circuit Court for Vernon county.
John Doe, plaintiff, )
against > Judgment. 6
Richard Roe, defendant. )
Having this day read the complaint of the plaintiff in the above
entitled cause, and also his affidavit therewith filed, as well as the
note sued upon herein, and the warrant of attorney signed by the
defendant in the above entitled cause, authorizing the confession of
judgment on the said note, and the answer of the said defendant,
wherein he confesses said complaint and submits to a judgment
against the said defendant in favor of the said plaintiff, all of which
papers were produced, exhibited and filed herein. Now, therefore,
on motion of Oliver Ellsworth, attorney for said plaintiff, it is hereby
considered and adjudged that the said plaintiff, John Doe, have and
recover of the said defendant, Richard Roe, the sum o>i five hundred
dollars claimed in said complaint and confessed in said answer,
together with thirteen dollars costs of this judgment, taxed as per
stipulation in said answer, amounting in all to the sum oi five hundred
and thirteen dollars. Judgment ordered to be entered by the clerk on
the ninth day of February, iS98.
Carroll Johnson, Circuit Judge. 7
Calvin Clark, Clerk.
1. For Form of complaint upon a note, plaintiff's right of action, and that they
in Wisconsin, see the title BILLS AND have sustained damages to the sum of
NOTES, vol. 3, p. 283, Form No. 4122. four hundred and twelve dollars and
2. For form of this affidavit see supra, eighty-nine cents. Whereupon, it is
note i, p. 85. considered and adjudged by the court
3. The promissory note, or other instru- that the said plaintiffs do have and
ment in writing, may embrace also the recover of and from the said defendants
warrant or authority for the confession the sum of four hundred and twelve dol-
of judgment. Sloane v. Anderson, 57 lars and eighty-nine cents, their dam-
Wis. 123. ages so as aforesaid confessed, together
4. For form of warrant of attorney see with their proper costs and charges
infra, note 3, p. 109. therein expended and taxed at the sum
5. For form of defendant's answer see of twelve dollars and thirteen cents, and
supra. Form No. 6057. that they may have execution therefor."
6. Precedent. In Remington v. Cum- 7. Must be signed by a judge, or court
mings, 5 Wis. 138, the judgment, omit- commissioner if entered in vacation,
ting formal parts, was as follows: "And So held where a judgment was entered
now at this day come the parties by upon a sworn statement or confession
their attorneys into the clerk's office, by defendant indorsed upon the com-
and the defendants, by warrant of at- plaint without service of process. Wads-
torney duly executed and now here worth v. Willard, 22 Wis. 238; Blaikie
produced, waive the issuing of process v. Griswold, 10 Wis. 293. See also
and service thereof, and by the plea of Remington v. Cummings, 5 Wis. 138;
confession by/. P. Ativood, their attor- Fairchild v. Dean, 15 Wis. 206.
ney, confess and acknowledge the
106 Volume 5.
6087.
CONFESSION OF JUDGMENT,
6087.
V. WARRANT OF ATTORNEY. 1
1. Distinct Instrument. 2
Form No. 6087.
Know all men by these presents, that I, Richard Roe, have made,
constituted and appointed, and by these presents do make, constitute
and appoint Jeremiah Mason true and lawful attorney for me and in
1. A warrant of attorney is an instru-
ment authorizing the person to whom
it is given to appear in an action on
behalf of the maker or to confess judg-
ment against him. And. L. Diet.,
Rapalje & L. L. Diet.; 28 Am. & Eng.
Encycl. of L. 685.
Must be filed and made part of the
record. Durham v. Brown, 24 111. 93.
Arizona. Rev. Stat. (1887), 803,
1445-
Kansas. 2 Gen. Stat. (1897), c. 95,
404-
Michigan. How. Anno. Stat. (1882),
7662.
Minnesota. Stat. (1894), g 6080.
Missouri. Rev. Stat. (1889), 2232.
Nebraska. Comp. Stat. (1897),
6015.
Ohio. Bates' Anno. Stat. (1897),
8 5324-
Oklahoma. Stat. (1893), 4298.
Texas. Rev. Stat. (1895), art. 1649.
Wyoming. Rev. Stat. (1887), 2671.
See list of statutes cited supra, note
2, p. 48, for similar provision in other
states.
Before action brought, powers of attor-
ney made on confessing judgment are
null and void in the following states:
Florida. Rev. Stat. (1892), 1178.
Kentucky. Gen. Stat. (1888), 416.
Mississippi. Anno. Code (1892),
747-
In Virginia, a power of attorney to
confess judgment may be executed
before the action Is brought. Virginia
Valley Ins. Co. v. Barley, 16 Gratt.
(Va.) 363-
If any person be in custody in a civil
action, at the suit of another, no war-
rant of attorney executed by the person
in custody, to confess judgment in
favor of the person at whose suit he is
in custody, shall be of any force unless
some attorney expressly named by
the person in custody be present and
sign the warrant of attorney as a wit-
ness.
Kansas. 2 Gen. Stat. (1897), c. 95,
405.
Nebraska. Comp. Stat. (1897), 6016.
See also list of statutes cited supra,
note 2, p. 48.
2. A Distinct Instrument. Some stat-
utes authorizing confession of judg-
ment upon a plea signed by an attorney
in vacation require the authority for
confessing such judgment to be in
some proper instrument distinct from
that containing the iustrument or con-
tract, etc., upon which judgment is
confessed.
Minnesota. Stat. (1894), 6080. See
also list of statutes cited supra, note
2, p. 48, for similar provisions in other
states.
Form of warrant of attorney at common
law to confess judgment is given in
Chit. F. (1847), p. 313.
Form of defeasance on warrant of at-
torney at common law to confess judg-
ment is given in Chit. F. (1847), p. 314.
Form of affidavit of execution of war-
rant of attorney as required by 3 Geo.
IV, c. 39, i, is given in Chit. F. (1847),
P- 315.
In Michigan, the statute requires the
authority to confess to be in some in-
strument distinct from that containing
the evidence of the debt. Such an in-
strument may be as follows:
" 1o Jeremiah Mason, Esq., attorney
of the Supreme Court of the state of
Michigan, or to any other attorney of the
said court, or of any other court, there
or elsewhere: Whereas, I, Richard Roe,
of the city of Detroit, in the state of
Michigan, made, executed and deliv-
ered, for value received, my certain
promissory note, of even date herewith,
for the sum of five hundred dollars, pay-
able one day after date, to the order of
John Doe, of the said city of Detroit,
state aforesaid, which said note was
made and delivered to secure the pay-
ment of the sum of five hundred dollars
by me this day borrowed of the said
John Doe, and by the said John Doe
loaned to me; these are to desire or
authorize you or any of you to appear
for me, my heirs, executors or admin-
107
Volume 5.
6087.
CONFESSION OF JUDGMENT.
6087.
my name, place and stead, to appear before the District Court of
Coif ax county, in the state of Nebraska, and there to waive service
and issuing of process, and to confess judgment in favor of John Doe
against me in the sum of five hundred dollars, with interest thereon
at the rate of six per cent, per annum from the ninth day of February,
j.897. Said indebtedness being now due and payable, and incurred
on account of (Here set ottt facts showing how the indebtedness arose, as
in form No. 603O), hereby giving and granting unto him, said attor-
ney, full power and authority to do and perform all and every act
and thing whatsoever requisite and necessary to be done in and about
the premises, as fully to all intents and purposes as I might or could
do if personally present, with full power of substitution and revoca-
tion, hereby ratifying and confirming all that my said attorney shall
lawfully do or cause to be done by virtue thereof. 1
istrators, in the said court, or else-
where, in an action of assumpsit, there
or elsewhere brought, or to be brought
against me, my heirs, executors or ad-
ministrators, at the suit of the said John
Doe, or his assigns, on the said promis-
sory note, or at any term or time, past
or present, or any subsequent term or
terms, there or elsewhere to be held,
and confess judgment, or judgments,
thereon against me, my heirs, execu-
tors or administrators, for the said sum
of five hu ndred dollars, the debt, besides
costs of suit by non sum informatus nil
licit, or otherwise, as to you shall seem
meet; and for you or any of you' so
doing, this shall be your sufficient war-
rant. And I do hereby for myself, my
heirs, executors and administrators,
remise, release, and forever quitclaim
unto the said John Doe, his certain at-
torney, heirs, executors, administrators
and assigns, all and all manner of error
and errors, misprisions, misentries,
defects and imperfections in the enter-
ing of the said judgment, or judgments,
or any processes or proceedings there-
on or thereto, or in anywise attaching
or concerning the same. In witness
whereof," etc.
1. Must be clear and explicit, and must
be strictly pursued. Frye v. Jones, 78
111. 627; Keith v. Kellogg, 97 111. 147;
Spence v. Emerine, 46 Ohio St. 433;
Cushman v. Welsh, 19 Ohio St. 536.
A warrant of attorney to confess
judgment on a note does not authorize
a confession before the maturity of the
note. Spier v. Corll, 33 Ohio St. 236.
Not naming attorney but running " to
any attorney " is not defective. Pop-
pers v. Meager, 33 111. App. 19.
"Any attorney" as used in a warrant
of attorney will not include a prothono-
tary or a clerk. Grover, etc., Sewing
Mach. Co. v. Radcliffe, 66 Md. 511.
Authorizing Scott or any other attor-
ney of court to confess judgment, etc.,
sufficiently authorized a confession by
Attorneys Scott and Booth. Patton v.
Stewart, 19 Ind. 233.
Power to confess judgment as " of any
term " means power to confess at
some term, and does not authorize a
confession in vacation. Whitney v.
Bohlen, 157 111. 572. But where a war-
rant of attorney authorizes a confes-
sion of judgment upon a note " at any
time" it may be done at any time after
the delivery of the note. Elkins v.
Wolfe, 44 111. App. 376.
Blanks in warrants of attorney may
be read as though the name of the
party against whom judgment is con-
fessed had been inserted. Packer v.
Roberts, 140 111. 671.
A printed blank warrant in which
the date was omitted, which authorized
the confession of judgment on a note,
describing it as bearing even date here-
with, a note and warrant being upon the
same piece of paper, was held to be
sufficient. Richards v. Globe Bank, 12
Wis. 692.
A printed blank warrant in a lease
was held not to be void for uncertainty
because some of the blanks were not
filled in, such omissions not render-
ing the instrument ambiguous. Links
v. Mayer, 22 111. App. 489. But this
would not be true where the omissions
were such as to render the instrument
uncertain and ambiguous. Chase v.
Dana, 44 111. 262; Morris v. Bank of
Commerce, 67 Tex. 602.
108
Volume 5.
6088.
CONFESSION OF JUDGMENT.
6088.
In witness whereof, I have hereunto set my hand and seal the ninth
day of February, one thousand eight hundred and ninety-seven.
Richard Roe I
Signed and delivered in the presence of
Banks Belk,
T. M. Hughes .
United States of America. }
State of Nebraska, > ss.
County of Colfax. }
Be it known, that on the ninth day of February, one thousand eight
hundred and ninety-seven, before me, a notary public in and for said
county and state, personally appeared Richard Roe, above named,
who is to me known to be the person described in and who executed
the above warrant of attorney, and acknowledged the same to be his
voluntary act and deed.
In testimony whereof, I have hereunto subscribed my name and
affixed my official seal, the day and year last above written.
(SEAL) Norton Porter, Notary Public. 2
Form No. 6 o 8 8 . 3
To any one of the Attorneys of the Supreme Court of Judicature of
the State of New Jersey, or any other Court of Record in said
State:
These are to desire and authorize you to appear for me, Richard
1. Need Not be Under Seal. Truett v.
Wain wright, 9 111. 411; Kneedler's Ap-
peal, 92 Pa. St. 428; Alexander v.
Alexander, 85 Va. 353; Kinnersley v.
Mussen, 5 Taunt. 264; Brutton v. Bur-
ton, i Chit. Rep. 707, 18 E. C. L. 209.
Though formerly it was required to be
under seal. 3 Black. Com. 397.
2. Most be acknowledged, as required
of deeds, in some jurisdictions.
Missouri. Rev. Stat. (1888), 2232.
Oklahoma. Stat. (1893), 4294. See
also list of statutes cited supra, note
2, p. 48, for similar provisions in other
states.
Proof of execution of warrant of attor-
ney should be made before the judg-
ment is confessed, and when the
judgment is confessed in vacation the
evidence of that fact must appear in
the record. Iglehart v. Chicago M. &
'. Ins. Co.. 35 111. 514; Gardner v.
Bunn, 132 111. 409. But a recital in
judgment of proof of execution of war-
rant is sufficient though no affidavit
thereon appears in the record. Iglehart
v. Church, 35 111. 255. The following
affidavit may be used for this purpose:
"State of Illinois, | Samuel Short of
Cook County. ) ' Chicago in said
county of Cook, being duly sworn, de-
poses and says that he is acquainted
with the handwriting of said defendant
Richard Roe, the maker of the annexed
note and power of attorney, and depo-
nent further says that the signature to
the said note and power of attorney is
the genuine signature of said Richard
Roe. Samuel Short.
Subscribed and sworn to before me
this first day of November, A. D. 1897.
Calvin Clark, Clerk."
3. New Jersey. Gen. Stat. (1896), p.
172, I et seq.
Included in the body of any bond, bill,
or other instrument, for the payment
of money, shall be void and of none ef-
fect. N. J. Gen. Stat. (1895), p. 172, i.
A warrant by two persons authorizing
judgment to be confessed " against us "
does not authorize the entry of a judg-
ment against one of them. Hunt v.
Chamberlain, 8 N. J. L. 336. But in
Croasdell v. Tallant, 83 Pa. St. 193, a
warrant embraced in a promissory note,
the note commencing thus, "or either
of us promise to pay," the warrant
running in these words, " and we em-
power any attorney to appear for us
and confess judgment against us," etc.,
was held to authorize the entering of a
judgment against the two survivors
upon the death of one of the makers.
The bail piece, which may be annexed
109
Volume 5.
6088. CONFESSION OF JUDGMENT. 6088.
Roe, in the said Supreme Court, or in any other court of record in
the said state of New Jersey, or before any justice or judge of
said courts, in term time or in vacation as of any term thereof,
past, present or to come ; and then and there to receive a declara-
tion against me at the suit of John Doe of a plea of trespass on
the case upon promises upon a promissory note given by me
to the said John Doe bearing date the ninth day of February, one
thousand eight hundred and ninety-seven, for the sum of five hun-
dred dollars, payable on demand to John Doe or to his order, for
value received, without defalcation or discount, and then and there
to confess such action and a judgment thereon against me in
favor of the said John Doe for the sum oi five hundred dollars dam-
ages, besides costs, being the amount due on said promissory note,
the said judgment to be thereupon forthwith entered up of record
against me and execution issue thereon accordingly; and for so doing
this shall be your sufficient warrant and authority. And I do hereby
release and authorize you to release, any errors that may happen to
be made in the confessing and entering up of such judgment, or in
the form or actual issuing of any execution thereon against me.
Witness, my hand and seal this ninth day of February, in the year
of our Lord one thousand eight hundred and ninety-seven.
Richard Roe. (SEAL)
Sealed and delivered in the presence of
Banks Belk,
T. M. Hughes.
to or indorsed upon the warrant of at- of three hundred and ninety-eight dollars
torney, may be as follows : with interest at the rate of six per cent.
"ssex Circuit Court. per annum until paid. Now therefore,
Of the February Term, i%g8. in consideration of the premises, we do
Essex County, ss. hereby make, constitute and appoint
Richard Roe, having been served with Daniel Webster, or any attorney of any
process, is delivered to bail to Samuel court of record, to be our true and law-
Short and Solomon Smith, both of the ful attorney irrevocable for us and in
city of Newark, in the county of Essex, our name and stead to enter our appear-
state of New Jersey, at the suit of John ance before any court of record in any
Doe in a plea of trespass on the case term time or in vacation in any of the
upon promises. Jeremiah Mason, states or territories of the United States
Attorney for Defendant." at any time after the said note becomes
Wisconsin. Sand. & B. Anno. Stat. due, to waive the service of process and
Wis. (1889), 2896, provides that in case to confess judgment in favor of the said
the answer is signed by an attorney an John Doe or his assigns on said note
instrument authorizing confession of for the above sum for so much as shall
judgment or entry shall be produced to appear to be due according to the
the court or judge signing the judg- tenor and effect of said note, and inter-
ment and shall be made a part of the est thereon at the rate of six per cent,
judgment-roll. The following form of per annum from the day of entry of the
power of attorney is substantially the said judgment, together with costs, and
same as that used in Remington v. also to file a cognovit for amount that
Cummings, 5 Wis. 139 : may be so due and to release all errors
" Know all men by these presents: that may intervene in entering up said
That whereas the subscriber is justly in- judgment or in issuing execution there-
debted lo John Doe upon a certain prom- on Hereby ratifying all which our
issory note bearing above date here- said attorneys may do by virtue hereof,
with payable sixty days after date to Witness my hand and seal at Milwau-
John Doe or order at the Merchants kee this twenty-second day of December,
National Bank of Milwaukee for the sum 1897. Richard Roe. (SEAL)"
110 Volume 5.
6089.
CONFESSION OF JUDGMENT.
6089.
2. Embraced in Another Instrument. 1
Form No. 6089.
Know all men by these presents, that I, Richard Roe, of Neu>-
castle, county and state of Delaware, am held and firmly bound unto
John Doe of Kent, county and state of Delaware, in the sum
This section does not require an " in-
strument authorizing judgment to be
confessed" to be distinct from the bond
or note. Sloane v. Anderson, 57 Wis.
123.
1. Embraced in the body of a promissory
note and forming a part thereof, in
Illinois (Keith v. Kellogg, 97 111. 151),
was the following warrant of attorney
authorizing confession of judgment
upon the note:
" And in case said sum, together with
accrued interest thereon, shall not be
paid when due, I authorize and em-
power any attorney at law in the state
of Illinois to appear before any court of
record in said state and confess judg-
ment for the above mentioned sum and
the accrued interest thereon, together
with costs of suit and $45-9.00 for attor-
ney's fees, said attorney's fees to be in-
cluded in said judgment as a part of
damages on said note, and to release
all errors and waive all proceedings in
the nature of a stay of execution, appeal
or petition in error. In witness whereof
I have hereunto subscribed my name
and affixed my seal this twenty-third
day of January, A. D. 1879.
H. M. Lyford. (SEAL)"
Embraced in a promissory note and
forming a part thereof, in Pennsylvania,
a warrant of attorney may be as follows:
"And I do hereby empower Jeremiah
Mason, Esq., attorney of the Court of
Common Pleas of Allegheny county, or
any other attorney of said court, or any
court of record in the state of Pennsyl-
vania, to appear for me and, with or
without declaration filed, to confess
judgment against me upon this note
for the sum therein mentioned, asof the
last, next or any other subsequent term,
with costs of suit, and release of all
errors, with stay of execution for three
months after the entry of said judg-
ment."
In Texas, a note signed by several,
concluding in the following words:
" In case of the nonpayment of the
above note at maturity, we hereby au-
thorize any licensed attorney at law to
appear for us in court, and to accept
service, waive process and confess
judgment in favor of the legal holder
of said note against for the amount
of said note and interest, with ten per
cent, attorney's fees additional," was
held not to authorize confession of
judgment against all the makers or any
particular one of them. Morris v. Bank
of Commerce, 67 Tex. 602.
In Virginia, the following note and
warrant of attorney may be used:
" One year after date, for value re-
ceived, I promise to pnyJoAn Doe the
just and full sum of one thousand dol-
lars ($7,000.00), with legal interest
thereon from February qth, 1897. I
hereby waive the benefit of my home-
stead exemption as to this debt. Given
under my hand and seal, at Charlottes-
ville this ninth day of February, 1897.
Richard Roe. (SEAL)
And I hereby authorize and appoint
Jeremiah Mason my true and lawful
attorney in fact for me and in my name
to appear in the clerk's office of the Cir-
cuit Court of the county of Albemarle, in
the state of Virginia, in an action of
debt to be brought against me at the
suit of the saidJoAn Doe on the above
bond at any time after the maturity
thereof, and confess judgment thereon
against me for the sum of one thousand
dollars, with interest thereon from the
ninth day of February, 1897, till paid,
and the costs of the suit. And I hereby
release all manner of error in the enter-
ing of said judgment, or any process
or proceedings thereon. Witness the
following signature and seal, this ninth
day of February, 1897.
Richard Roe. (SEAL) "
The word "holder" found in a promis-
sory note containing a power of at-
torney to confess judgment without
process in favor of the " holder" at any
time is construed in Richards v. Bar-
low, 140 Mass. 218.
Attached to a sealed note, payable to
the payee or bearer, a warrant of attor-
ney authorizing " any attorney at law
at any time after the above sum becomes
due, with or without process, to appear
for us in any court of record in the
state of Ohio and confess judgment,"
etc., conferred no authority to confess
111
Volume 5.
6089.
CONFESSION OF JUDGMENT.
6089.
of one thousand dollars, lawful money of the United States of
America, to be paid to the said John Doe or his certain attorney,
executors, administrators or assigns, to which payment well and
judgment against the maker of the note
in favor of the holder to whom the
payee had transferred it. Spence v.
Emerine, 46 Ohio St. 433.
Embraced in a lease and forming a part
thereof, in Pennsylvania, a warrant of
attorney may be as follows: "And
further the said Richard Roe hereby
empowers any attorney of any court of
record in the said county of Allegheny,
or elsewhere, to appear for him and
confess judgment against him for such
amount as may at any time be due and
in arrears for rent, stipulated to be paid
as aforesaid, together with costs."
A lease embracing a provision au-
thorizing an attorney to appear for the
lessee and confess judgment in eject-
ment has been held to be a sufficient
warrant of attorney. Betz v. Valer, 39
Leg. Int. (Pa.) 190.
Embraced in a judgment bond with
forfeiture clause, the warrant of attorney
is often as follows:
" Know all men by these presents,
that we, Richard Roe and Samuel Short,
both of Kent, county and state of Dela-
ware, are held and firmly bound unto
John Doe of Kent, county and state of
Delaware, in the sum of two thousand
dollars, lawful money of the United
States of America, to be paid to the
sa.id.John Doe or his certain attorney,
executors, administrators or assigns,
to which payment well and truly
to be made we jointly and sever-
ally bind ourselves, our heirs, execu-
tors and administrators, firmly by these
presents. Sealed with our seals, and
dated this ninth day of February, in the
year of our Lord one thousand eight
hundred and ninety-seven,
The condition of this obligation is
such, that if the above bound Richard
Roe and Samuel Short, their heirs, ex-
ecutors or administrators, or any of
them, shall and do well and truly pay or
cause to be paid unto the above named
John Doe, his certain attorney, execu-
tors, administrators or assigns, the full
sum of one thousand dollars, lawful
money of the United States of America,
with lawful interest for the same (Here
state times and manner of making pay-
ments), on or before the ninth day of
February, in the year of our Lord one
thousand eight hundred and ninety-
eight, without fraud or further delay,
then this obligation to be void and of
no effect, or else shall be and remain
in full force and virtue.
Provided, however, and it is hereby
expressly agreed, that if at any time
default shall be made in the payment
of said principal debt and interest as
the same becomes due and payable, or
any part thereof, for the space of thirty
days after any payment thereof shall
fall due, then and in such case the
whole principal debt then unpaid shall,
at the option of the sa\AJohn Doe, his
executors, administrators or assigns,
become due and payable immediately,
and payment of said principal then un-
paid and all interest thereon may be
enforced and recovered at once, any-
thing herein contained to the contrary
thereof notwithstanding.
And further, we do hereby jointly
and severally authorize and empower
any attorney or prothonotary of any
court of record in the state of Delaware,
or elsewhere, to appear for us and each
or either of us, at the suit of the said
John Doe, his executors, administrators
or assigns, and thereupon to confess
judgment for the above penalty to the
said John Doe, his executors, adminis-
trators or assigns, as of the last, next or
any other term or time after the date
hereof.
And further, we do hereby jointly
and severally release all and all man-
ner of error or errors in any such
judgment, and execution to be issued
thereon.
Richard Roe. (SEAL)
Samuel Short, (SEAL)
Signed, sealed and delivered in the
presence of Banks Belk.
T. M. Hughes."
Annexed to a bond may be a warrant
of attorney authorizing an attorney to
confess judgment upon the bond; and
such warrant may be as follows:
" To any Attorney at Law of any Court
of Record of the State of New Jer-
sey or elsewhere:
These are to authorize you to appear
for me in any of the said courts, in an
action of debt brought or to be brought
against me at the suit of John Doe
named in the following bond, my ex-
ecutors, administrators or assigns, and
thereupon confess judgment against
me as of the last or any subsequent
112
Volume 5.
6089. CONFESSION OF JUDGMENT. 6089.
truly to be made I bind myself, my heirs, executors and administra-
tors, firmly by these presents.
Sealed with my seal, and dated this ninth day of February, in the
year of our Lord one thousand eight hundred and ninety-seven.
The condition of this obligation is such, that if the above bound
Richard Roe, his heirs, executors or administrators, or any of them,
shall and do well and truly pay, or cause to be paid unto the above
named John Doe, his certain attorney, executors, administrators or
assigns, the full sum of two hundred and fifty dollars, lawful money qf
the United States of America, with lawful interest for the same, at
the times and in the manner following, to wit: one hundred dollars
on theyfr^/ day of July in the year of our Lord one thousand eight
hundred and ninety-seven; one hundred dollars on the first day of
December in the year of our Lord one thousand eight hundred and
ninety-seven; and the balance of said sum on or before the ninth day
of February in the year of our Lord one thousand eight hundred and
ninety-eight, without fraud or further delay, then this obligation to be
void and of no effect, or else shall be and remain in full force
and virtue.
And further, I do hereby authorize and empower any attorney or
prothonotary of any court of record in the state of Delaware, or else-
where, to appear for me at the suit of the said John Doe, his execu-
tors, administrators or assigns, and thereupon to confess judgment
for the above penalty to the said John Doe, his executors, adminis-
trators or assigns, as of the last, next or any other term or time
after the date hereof.
And further, I do hereby release all and all manner of error or
errors in any such judgment, and execution to be issued thereon.
Richard Roe. (SEAL)
Signed, sealed and delivered in the presence of
Banks Belk,
T. M. Hughes.
term, for the sum mentioned in the February, one thousand eight hundred
said obligation, with costs of suit, and ninety-seven.
agreeably to law, hereby releasing all Richard Roe. (SEAL)
errors, and this shall be your warrant. Signed, sealed and delivered in the
In witness where of, I have hereunto presence of Banks Belk.
set my hand and seal this ninth day of T. M. Hughes"
5 E. of F. P. 8. 113 Volume 5.
CONSIDERATION.
I. WANT OF CONSIDERATION, 114.
II. FAILURE OF CONSIDERATION, 117.
1. Partial Failure, 117.
a. In General, 117.
b. False Representations as to Value of Real Estate, 118.
c . Want of Title to Part of Land Purchased by Executory
Contract, 120.
d. Failure to Procure Assignment of Lease of Property
Sold to Defendant, 120.
2. Total Failure, 121.
a. Defeasance, 121.
b. Fraud in Selling Horse of No Value, 121.
c. Breach of Warranty in Sale of Chattel, 122.
d. Failure to Make Good Title to Real Estate, 122.
e. Nonperformance of Condition upon which Subscription
for Stock was Made, 124.
III. ILLEGAL CONSIDERATION, 124.
i. Note Given to Compound Offense, 124.
a. Note Given for Money Used or Lost in Gaming, 126.
3. Note Given for Liquors Sold Without License, 128.
4. Contract Against Public Policy, 128.
IV. CONSIDERATION TAINTED WITH USURY, 129.
CROSS-REFERENCE.
For matters of Substantive Law, see the title CONSIDERA TION, 6
AMERICAN AND ENGLISH ENCYCLOPAEDIA OF LAW (2d. ed.),
p. 667.
I. WANT OF CONSIDERATION. 1
1. How Pleaded General Allegation v. Brumbaugh, 7 Kan. 343; Foren v.
that Contract was Without Consider- Dealey, 4 Oregon 93. But a general
ation. A general allegation that a averment of this character is controlled
note or contract "was without any and completely nullified by a statement
consideration whatever" constitutes a of facts and circumstances in the answer
good defense. Fisher v. Fisher, 113 showing that it is untrue and that there
Ind. 474; Beard v. Lofton, 102 Ind. was, in fact, a good and sufficient con-
408; Moyer v. Brand, 102 Ind. 301; sideration. McCormick v. Barry, 01
Moore v. Boyd, 95 Ind. 134; Bush Neb. 207; Foren v. Dealey, 4 Oregon
v. Brown, 49 Ind. 573; Hunter z>. Me- 93. An answer "that defendant re-
Laughlin,43 Ind. 38; Billan v. Herckle- ceived no consideration for said note"
brath, 23 Ind. 71; Earner v. Morehead, is bad on demurrer. Bingham v. Kim-
22 Ind. 354; Swope v. Fair, 18 Ind. 300; ball, 33 Ind. 184; Anderson v. Meeker,
Webster v. Parker, 7 Ind. 185; Miller 31 Ind. 245. Theanswer should allege,
114 Volume 5.
6090. CONSIDERATION. 6090.
Form No. 6090.
(Precedent in Linn v. State Bank, 2 111: 87.)'
[In the Jackson Circuit Court.
Term, iS30.
William Linn ~\
ats. I n . 12
The President and Directors of the (
State Bank of Illinois.
And the said defendant comes and defends the wrong and injury,
when, etc., and claims oyer of the said supposed writing obligatory
in the said plaintiffs' declaration mentioned, and it is read to him in
these words: {Here was set out a copy of the sealed note.) Which being
read and heard, the said defendant says that the said plaintiffs ought
not to have or maintain their said action against him, this defendant,
because he says that the said writing obligatory was sealed and
delivered by him to the said plaintiffs for the notes or bills issued and
emitted by the said President and Directors of the said State Bank of
Illinois, under and by virtue of an act of the General Assembly of
the said State, entitled "An act establishing the State Bank of Illi-
nois," passed in the year of our Lord 1821, which said act of the
General Assembly is here inserted, and made a part of this plea. By
which said act the said notes or bills of said bank are not redeem-
able or payable by said bank until after the expiration of ten years
from and after the passage of the said act incorporating said bank,
and from and after the time said notes or bills should be emitted
and issued by said bank, which said notes or bills were issued or
not that no consideration was received action on a nonnegotiable note by the
by the party pleading, but that no con- assignee against the maker, which
sideration existed for the execution of shows that the maker being security for
the contract. 4 Encycl. of PI. and Pr. the payee the latter deposited with him
948. a chattel as a pledge for his indemnity,
Facts Showing Want of Consideration, and thereupon a note was given merely
In some jurisdictions a plea of want as evidence of the deposit, is a good
of consideration must, besides showing plea of want of consideration. Doan v.
the circumstances, distinctly allege Moss, 20 Mo. 297.
that there was no other consideration 1. The trial court sustained a de-
than that mentioned. Boden v. Wright, murrer to this plea, but upon error the
12 C. B. 445, 74 E. C. L. 444; Tittle v. supreme court reversed the judgment,
Bonner, 53 Miss. 578. But in such a holding that bills issued by the state
case, where the defendant pleads want bank were bills of credit issued by the
of consideration without stating the state within the meaning of the con-
facts upon which the defense is based, stitution of the United States and were
the answer is assailable, not by de- therefore void. Linn v. State Bank,
murrer but by motion for more specific 2 111. 87, overruling Snyder v. State
statement. Simpson Centenary Col- Bank, i 111. 161. See also Craig v.
lege v. Bryan, 50 Iowa 293. And see Missouri, 4 Pet. (U. S.) 410; Byrne v.
Chamberlain v. Painesville, etc., R. Missouri, 8 Pet. (U. S.) 40; Briscoe v.
Co., 15 Ohio St. 225, where it was held Kentucky Com. Bank, n Pet. (U. S.)
that an answer that a note is wholly 257; Darrington v. Branch of Alabama
without consideration is sufficient to let State Bank, 13 How. (U. S.) 12.
in evidence to impeach or sustain the 2. The words and figures enclosed by
consideration if the plaintiff joins issue [] will not be found in the reported
without requiring a statement of the case, but have been added to render the.
facts upon which the defense is based, form complete.
Sufficient Facts. An answer, in an
115 Volume 5.
6091. CONSIDERA TION. 6092.
emitted on the day of July, \%21, and the emission and
delivery thereof by the said plaintiffs to this defendant were the sole
and only consideration for the said writing obligatory so executed
as aforesaid, and for no other consideration whatever was the
said writing obligatory so executed as aforesaid, for no other con-
sideration whatever was the said writing obligatory executed, sealed
and delivered by the defendant to the said plaintiffs; which said
notes or bills so emitted, issued and delivered as aforesaid, by the
said plaintiffs to this defendant, are bills of credit within the true
intent and meaning of the Constitution of the United States; and so
the defendant says, that the said writing obligatory in the plaintiffs'
declaration mentioned, was sealed and delivered by this defendant
to the said plaintiffs, without his having received of and from said
plaintiffs any good or valuable consideration therefor, and this he is
ready to verify, wherefore he prays judgment if the said plaintiffs
ought to have or maintain their said action thereof against him, this
defendant, etc.
S. Breese, for defendant.
Form No. 6091.
(Bullitt's Civ. Code Ky. (1895), p. 635, No. 96.)
Lee Circuit Court.
John Doe, plaintiff, }
against > Answer of Defendant.
Richard Roe, defendant. )
The defendant, Richard Roe, says that the writing (or note or agree-
ment") in the petition mentioned, was executed without any con-
sideration.
Jeremiah Mason, Attorney.
The defendant, Richard Roe, says that the statements (or that he
believes the statements') of the foregoing answer are true.
Richard Roe.
Signed and sworn to by said Richard Roe this first day of February,
iS98, before me, clerk of the Lee Circuit Court.
John Hancock, Clerk.
Form No. 6092.
State of North Dakota, \ In the District Court,
County of Burleigh. f Sixth Judicial District.
John Doe, plaintiff, }
against > Answer.
Richard Roe, defendant. )
The defendant answering the plaintiff's complaint says:
I. That the note therein mentioned was given by the defendant
solely for and on account of certain goods {naming them), sold and
delivered to the defendant by the plaintiff, and without any other
consideration therefor.*
II. That the plaintiff was not the owner of said goods so sold and
delivered to the defendant, but the same were the property of one
Samuel Short, who, in an action of replevin, on the third day of
116 Volume 5.
6093.
CON SID ERA TION.
6093.
January. i898, recovered said property from the defendant, whereby
the defendant has received no consideration for said note.
Joseph Story, Defendant's Attorney.
(Verification^-
II. FAILURE OF CONSIDERATION. 2
1. Partial Failure. 3
a. In General. ^
Form No. 6093.
(Precedent in Purkett v. Gregory, 3 111. 44.)*
[( Title of court and cause as in Form No. 6090.")]*
And the said defendants come and defend, etc., and say that as to
1. Verification. For the form of veri-
fication in a particular jurisdiction see
the title VERIFICATIONS.
2. How Pleaded. In pleading a fail-
ure of consideration, the facts showing
wherein the failure of consideration
consists must be alleged. Sims v. Herz-
feld, 93 Ala. 145; Carmelich v. Mims,
88 Ala. 335; Ahren v. Willis, 6 Fla. 359;
Applegate -v. Crawford, 2 Ind. 579; Mul-
likin v. Latchem, 7 Blackf. (Ind.) 136;
Garrett v. Heaston, 5 Blackf. (Ind.)
349; Sheldon v. Lewis, 97 111. 640;
Christopher v. Cheney, 64 111. 26; Parks
v. Holmes, 22 111. 522; Vanlandingham
v. Ryan, 17 111. 25; Evans v. Green
County, 6 111. 654; Swain v. Cawood, 3
111. 505; Sims v. Klein, i 111. 302; Brad-
shaw v. Newman, i 111. 133; Poole v.
Vanlandingham, i 111. 47; Cornelius v.
Vanorsdall, I 111. 23; Billan v. Herckle-
brath, 23 Ind. 71; Swope v. Fair, 18
Ind. 300; Staley v. Ivory, 65 Mo. 74;
Clifton v. Brundage, 25 Tex. 331;
Luckie v. McGlasson, 22 Tex. 282; 4
Encycl. of PI. and Pr. 950.
As to when partial failure may be
shown under a plea of total failure, see
4 Encycl. of PL and Pr. 951.
Where the consideration fails from a
defect in goods sold, the nature of the
defect should be stated as nearly as may
be, and also the extent of the deprecia-
tion thereby caused. Castles v. Wood-
house, i Code Rep. (N. Y. Super. Ct.) 71;
Deifendorff v. Gage, 7 Barb. (N. Y.) 18.
And unless it be alleged that the prop-
erty purchased is entirely worthless it
should be alleged that the defendant
returned or offered to return it. Hyn-
son v. Dunn, 5 Ark. 395.
3. For other pleas of partial failure of
consideration see as follows: Defective
title to land purchased by executory
contract and in defendant's possession.
Bullitt's Civ. Code Ky. (1895), p. 636.
Fraud in the sale of land conveyed
with warranty of title and in defendant's
possession. Bullitt's Civ. Code Ky.
(1895), p. 637.
Mistake as to quantity of land pur-
chased. Bullitt's Civ. Code Ky. (1895),
P- 637.
In Morgan v. Printup, 72 Ga. 67, the
plea was held to show a partial failure
of consideration. Omitting formal parts
it was as follows:
"Defendant says the consideration
for which the note for the one 6 H. P.
Scofield engine was given has entirely
failed, because he says plaintiffs war-
ranted said engine to be full six-horse-
power, and to be in good condition, in
all which plaintiffs were mistaken, the
engine not being full six-horsepower,
nor was it in good condition, but was a
source of annoyance and expense to
the defendant almost from the time he
first bought it until it finally broke
down entirely and is now worthless.
And of this he puts himself upon the
country. And for further plea in this
behalf, defendant says actio non, etc.,
because he says that the consideration
of the gin note has failed, because he
says that the gin was represented as a
good gin, when, on the contrary, the
ribs of said gin were made of inferior
soft metal, and wore out the first
season."
4. The circuit court sustained a
demurrer to this plea, but the supreme
court reversed the judgment and held
that the plea was good as a plea of par-
tial failure of consideration. Purkett
v. Gregory, 3 111. 44.
5. The words to be supplied within [ ]
will not be found in the reported case.
117
Volume 5.
6094. CONSIDERATION. 6094.
one hundred and sixty-three dollars, part of the debt in the petition
mentioned, the plaintiff actiqnem non; because they say that on the
J</day of August, i8<?6\ the plaintiff sold to these defendants certain
parcels of land situated in Illinois, being all the right and interest of
said plaintiff in the Illinois Land Association, and also sold the defend-
ants the dividends which the plaintiff was entitled to from the said
association from the sale of choice lands in said association; and the
plaintiff covenanted and agreed with defendants, to convey said
lands to defendants, and to pay to the association presently, to wit,
at the date aforesaid, the amount bid by said plaintiff for choice of
lands in said association, and that said defendants should receive the
dividend which said plaintiff was entitled to, arising out of the pay-
ment of choice money as aforesaid. In consideration of which sale
and agreements on the part of the plaintiff, the defendants executed
the note in the petition mentioned, and the defendants aver that the
choice money to which the plaintiff was entitled from the association
aforesaid, and which the said plaintiff covenanted that these defend-
ants should receive, amounted to the sum of one hundred and sixty-
three dollars. And they further aver that the said plaintiff hath not
paid the amount bid by him for choice of lands in said association,
in consequence of which failure of the plaintiff to pay said associa-
tion the amount bid as aforesaid, the defendants have not received
the dividend due said plaintiff, as said plaintiff covenanted that said
defendants should receive. Wherefore the defendants say that the
consideration for which said note in the petition mentioned was
given, hath failed to the extent of one hundred and sixty -three dollars as
aforesaid, all which they are ready to verify, etc. Wherefore [(con-
cluding as in Form No. 6090).] 1
b. False Representations as to Value of Real Estate.
Form No. 6094.
(Precedent in Reamer v. Bell, 79 Pa. St. 293.)*
[In the Court of Common Pleas, No. 2, of Allegheny County.
Thompson Bell
against
Josiah Reamer, Wesley Wil-
son and Samuel Short, co-
October Term, i875.
No. 118.
partners under the name of
The Mahoning 'Iron Com-
pany.
Allegheny County, ss.
Josiah Reamer, one of the defendants in the above entitled cause,
1. The words to be supplied within davit stated a good defense against the
[ ] will not be found in the reported indorsee. Omitting the formal parts
case. the affidavit was as follows:
2. This affidavit was held sufficient to "Affiant purchased from John Row-
put the plaintiff on proof that he was ley the lease of tavern No. ji Diamond
a bona fide holder. Square, Pittsburgh, and certain personal
Precedent. In Moeck v. Littell, 82 property therein contained, for the sum
Pa. St. 354, it was held that the affi- of $7,700; affiant paid the sum of $300
118 Volume 5.
6094.
CON SID ERA TION.
6094.
being duly sworn according to law, deposes and says] 1 that as depo-
nent is informed and verily believes, and expects to be able to prove
on trial of this cause, the said plaintiff has no title to the note sued
on. That said note was given (inter alia) in part payment of the
purchase money of certain property, situated in Mahoning county,
Ohio, sold to the deponent and others by William Dihvorth, Jr. (payee
of said note), and others, and said note was secured by a mortgage
on said property. That suit for the foreclosure of said^ mortgage has
lately been instituted in the Court of Common Pleas of Mahoning
county, Ohio, wherein it appears, by the pleadings and by an affidavit
filed on behalf of William Dihvorth, Jr., that said William Dilworth,
Jr., claims to be the owner of the note sued on in this case. And
deponent says that said note was procured by false and fraudulent
representations, in the first instance, in reference to the value of the
property, in part payment of which said note was given; and that the
defendants have a full, just and legal defense to the payment of said
note and to the foreclosure of the mortgage aforesaid, in this, that
the consideration therefor has failed; [and further affiant saith not.
Josiah Reamer.
Sworn to and subscribed before me this first day of October, i875.
(SEAL) Norton Porter, Notary Public.] 1
in cash, and gave to said Rowley two
notes, one of $joo, payable in three
months after date, on which suit has
been brought and judgment entered,
and the note in suit for $700, of which
Jacob Moeck, Jr., is the maker; that
affiant procured the same to be indorsed
by Conrad Moeck and Jacob Moeck, the
present defendant, which making and
indorsing was for the accommodation
of this affiant, and at the same time for
the purpose of securing the said John
Rowley in his purchase money, and
affiant says that the defendant, at the
time of the indorsement of the said
note, was not aware of the amount of
the same, nor the real object for which
it was given. Affiant further says that
a large portion of the consideration of
said notes and money was the value of
certain personal property alleged to
have been on the premises at the
time the purchase was made, and which
was alleged to have been in good con-
dition by said Rowley; said Rowley
further alleging that the tavern stand
which was then established there, and
which also constituted a part of the
consideration of said notes and money,
was a first-class stand, very valuable,
and that it was to remain in the condi-
tion it was then, at the time of the pur-
chase, about January #th, 1875; whereas,
In fact, the goods, property, etc., alleged
to be on said premises at the time, were
almost worthless, and the better portion
of them were after the said purchase
removed off the premises before its oc-
cupation by affiant, by either the said
Rowley or some person acting in his
behalf, as affiant expects to be able to
prove; and whereas, also, the house
was not a good or first-class stand, and
almost entirely worthless. And the
said Rowley having represented that it
would remain in the condition it was
then was also an inducement for affiant
to purchase. Yet the same was in a
very short time reduced to a condition
entirely untenantable and had to be
entirely abandoned, and the defendant
avers that the consideration for the note
in suit has not only entirely failed,
but more than failed, but affiant further
avers, expects to be able to prove and
show on the trial of this case, that
James Littell, the plaintiff above named,
is not the owner and holder for value,
and before the maturity of the note
in suit, but the same was handed over
to him by John Rowley, the payee, for
the purpose of debarring the maker and
indorser thereof from a defense to the
same."
Compare the precedent in Hutchinson
v. Boggs, 28 Pa. St. 295.
1. The words and figures enclosed by
[ ] will not be found in the reported
case, but have been added to render
the form complete.
119
Volume 5.
6095. CONSIDERATION. 6096.
c. Want of Title to Part of Land Purchased by Executory Contract.
Form No. 6095.
(Bullitt's Civ. Code Ky. (1895), p. 636.)
(Title of court and cause as in Form No. 6091.}
The defendant says that, on the first day of November, 1 897, in
consideration of five hundred dollars which he then paid to the plain-
tiff, and of the note in the petition mentioned, the plaintiff signed
and delivered to the defendant a covenant, of the date aforesaid,
which is filed herewith, marked Exhibit A, and by which he cove-
nanted to convey to the defendant a tract of land situate in Lee
county, and bounded as follows: (Here describe the land by abuttals or
by metes and bounds}, and containing two hundred and fifty acres; and
that, as the defendant has since discovered, the plaintiff had not then,
and has not now, any title to one hundred and fifty acres of said land. 1
Wherefore, the defendant asks for a credit si four hundred and
fifty dollars on the note sued on, and for any other relief he may
appear entitled to.
Jeremiah Mason, Attorney.
d. Failure to Procure Assignment of Lease of Property Sold to
Defendant.
Form No. 6096.
(Precedent in Mann v. Smyser, 76 111. 367.)*
[(Title of court and cause as in Form No. 6090. )] 3
And for a further 4 plea in this behalf, defendant says actio non,
because he says that the plaintiffs caused and procured the defendant
to enter into the said agreement, and to promise as to the said first
count of said declaration alleged, and the defendant was induced to
enter into and make the said agreement and promises aforesaid
through and by means of fraud, covin and misrepresentation of the
plaintiffs and others in collusion with them, in this: that on the 29th
day of July, A. D. i87#, plaintiffs sold to defendant their warehouse,
situated on the side of the /. and St. L. R. R. in the city of Paris,
1. Rescinding Contract. If the de- him as above stated, with interest
fendant wishes to have the contract re- thereon from \htfirst day of November,
scinded, he may state facts, if they 1897, and costs, and for a sale of that
exist, conducing to show that he would part of the said land to which plaintiff
not have purchased the land if he had has title, to wit: {Here describe the lands
known that the plaintiff had no title to by abuttals or by metes a nd bounds), for the
the one hundred and fifty acres, and satisfaction of said jndgment, and for
then say: " and the defendant says that any other relief the defendant may ap-
he is ready and willing to surrender pear entitled to.
to the plaintiff the aforesaid covenant, Jeremiah Mason, Attorney."
and the possession of said land, and to 2. This was held by the supreme
account for such rents and profits as he court to be a sufficient plea of partial
may be found chargeable with. failure of consideration.
Wherefore, he makes this answer and 3. The words and figures to be sup-
counterclaim against the plaintiff, and plied within [ ] will not be found in the
asks that the note sued on may be can- reported case.
celed, and for a judgment against the 4. The remaining pleas were not set
plaintiff for five hundred dollars, paid to out in the reported case.
120 Volume 5.
6097. CONSIDERATION. 6098.
Illinois, for the sum of $1,500, including one corn-sheller, etc.; that
said defendant was induced to and did enter into said contract by
representations of said plaintiffs that they could and would pro-
cure for him an assignment of the lease from said railroad company
of the ground upon which said warehouse and appurtenances were
situated, which said representations plaintiffs knew to be false and
fraudulent at the time and place last aforesaid.
Defendant further avers, that plaintiffs made said representations
to defendant as aforesaid, knowing them to be false, and that defend-
ant, relying upon such representations, entered into said contract,
and in payment thereof executed his notes, as follows: for the sum
of $500 each, payable in four, eight and twelve months, respectively,
the last of which is the one declared on in said declaration, the other
two having been fully paid and discharged by said defendant.
And the defendant says plaintiffs did not and could not, by the
terms of their lease with said railroad company, procure an assign-
ment of the grounds on which the said warehouse and appurtenances
were situated, but that the said railroad company, after the said sale
to defendant, before they would assign said lease of plaintiffs to
defendant, took possession of a portion of the grounds upon which
said warehouse and appurtenances were situated, and compelled the
defendant to remove a portion of said warehouse, and deprived him
of a portion of said ground to his great damage, to wit: the sum of
$500, of all which the plaintiffs then and there had notice and this
he is ready to verify, [(concluding as in Form No. 609O).] 1
2. Total Failure,
a. Defeasance.
Form No. 6097.
(Bullitt's Civ. Code Ky. (1895), p. 635.,
(Title of court and cause as in Form No. 6091.)
The defendant, Richard Roe, says that, by a written agreement
executed simultaneously with the note sued on, and which is filed
herewith, the plaintiff agreed that, unless he should deliver a certain
jackass therein mentioned to the defendant within ten days there-
after, said note should be given up to the defendant; and that said
jackass was not delivered to the defendant within said ten days, nor
afterwards.
Jeremiah Mason, Attorney.
b. Fraud in Selling Horse of No Value.
Form No. 6098.
(Bullitt's Civ. Code Ky. (1895), p. 635.)*
( Title of court and cause as in Form No. 6091. )
The defendant, Richard Roe, says that the note sued on was given
v
1. The words and figures to be sup- sideration through fraud in selling
plied within [ ] will not be found in the personal property to the defendant,
reported case. and an offer to return the property, in
2. See another plea of failure of con- Bullitt's Civ. Code Ky. (1895), p. 636.
121 Volume 5.
6099. CONSIDER A TION. 6 1 00.
in consideration of a horse sold by the plaintiff to the defendant, and
which the plaintiff falsely and fraudulently represented to the defend-
ant as being sound, though, as the plaintiff knew, it was unsound and
had a disease of which it died, and which made it of no value.
Jeremiah Mason, Attorney.
(Verification as in Form No. 6091.)
e. Breach of Warranty in Sale of Chattel. 1
Form No. 6099.
(Commencing as in Form No. 6092, and continuing down to *.)
II. That, as the plaintiff then well knew, said goods were purchased
by the defendant for (naming the purpose for which they were bought),
and the plaintiff, as part of the contract of sale and consideration
of said note, warranted and represented that said goods were fit and
proper and suitable for such purpose.
III. That, as the plaintiff well knew, the defendant accepted and
purchased said goods for (naming the purpose for which they were bought),
trusting in the said representations and warranty of the plaintiff.
IV. That the said goods were not fit or proper for said purpose,
for the reason that (Here state wherein the goods were defective), and
have always been and are altogether useless to the defendant.
V. That as soon as the defendant learned the character of said
goods he notified the plaintiff thereof and offered to return them,
which he is still ready and willing to do.
Wherefore (concluding as in Form No. 6092).
d. Failure to Make Good Title to Real Estate. 1
Form No. 6100.
(Precedent in Hulshizer v. Lamoreux, 58 111. 73. ) s
1. Precedent. In Beers v. Williams, balance; and the said defendant avers
16 111. 69, the plea was held to be a that said boiler and fireplace were not
good plea of failure of consideration, reasonably fit and proper for the place
Omitting formal parts it was as fol- they were intended as aforesaid, but,
lows: on the contrary, they were unfit and
" And the said defendant, by leave improper in this, that they were un-
of the court, etc., comes and defends, sound and defective; inconsequence of
etc., and to the first count of the said which unsoundness and effectiveness,
declaration says actio non, because they upon full and proper trial thereof by
say, that the consideration for which said defendant, the said boiler and
the said note sued on was given was a fireplace exploded, and they conse-
boiler and fireplace manufactured by quently failed to answer the purpose
the said plaintiff, and the warranty for which they were intended and war-
that the said boiler and fireplace were ran ted as aforesaid; wherefore, he says
reasonably fit and proper for the pur- that the consideration of said note has
pose they were intended, and for no wholly failed."
other consideration. And the defend- 2. Precedents. See also forms of
ant avers that they were intended for affidavits of defense in Bronson v,
driving the machinery of a grist and Silverman, 77 Pa. St. 95; Garrett v.
saw mill at Virginia, Cass county, Crosson, 32 Pa. St. 374.
Illinois, for which boiler and fireplace, 3. This plea was held to set up a
and the warranty thereof, the defend- good defense, since no right of action
ant paid three hundred dollars cash, accrued on the note until the title to
and executed the note sued on for the the land was conveyed.
122 Volume 5.
6100. CONSIDERATION. 6100.
[{Title of court and cause as in Form No. 6990. )]*
And for a further 2 plea in this behalf to the said declaration, the
defendant says actio non, because, he says, the only cause of action
sued on in said declaration is said note described in the first count
thereof, and the said declaration avers that the sole and only con
sideration for said note was the following described real estate, sold
by William Lamoreux, deceased, in his lifetime, to said defendant,
to wit: Lots Nos. 5 and 6, in block No. 6, in the town of Mason
City, Illinois, which said sale of lots was evidenced by a certain
bond executed by the said William Lamoreux, deceased, in his life-
time in substance, as follows: That is to say, William Lamoreux
acknowledged himself to be held and firmly bound unto the said
defendant in the penal sum of 1,000, to be paid unto the said
defendant, his heirs, executors, administrators or assigns, to whom
payment was well and truly to be made, he bound himself, heirs,
executors and administrators, and every one of them, firmly by
these presents, sealed with the seal of said William Lamoreux,
deceased, and dated November 28th, i87. The condition written
under said bond was, after reciting that the said William Lamoreux
had that day sold to said defendant the said lots above described,
for the sum of $1,200, of which said sum $300 was to be paid down
at the ensealing and delivering of said bond, and the balance, $-900,
on the 1st day of June, 1868, with ten per cent, interest from date;
that upon payment of said sum being made at the time and in the
manner aforesaid, the said William Lamoreux, for himself, his heirs,
executors and assigns, covenanted and agreed to and with the said
defendant, his heirs, executors, administrators and assigns, to
execute a good and sufficient deed of conveyance in fee simple, free
from all incumbrances, with full and proper covenants of warranty
for the above described premises.
Now if the said William Lamoreux shall well and truly keep,
observe and perform his said covenants and agreements herein con-
tained, on his part, then the above obligation to be void, otherwise
to remain in full force and virtue, which said bond was duly signed
and sealed by the said William Lamoreux, and the said defendant
avers that the said note set out in the first count is the only remain-
ing note or amount yet unpaid on said note due or to become due,
and the defendant avers that the said William Lamoreux, deceased,
in his lifetime, nor his heirs, executors, administrators or assigns,
since his decease, at any time before the commencement of this said
suit, nor at any time since, executed or offered to execute or tender
to the said defendant upon the payment of the balance due on said
note, a good and sufficient deed of conveyance in fee simple, free
from all incumbrances, with full and proper covenants of warranty
for the above described town lots, all of which the said defendant is
ready to verify, [(concluding as in Form No. 6090).] 1
1. The words and figures to be sup- 2. A plea of the general issue is
plied within [ ] will not be found in the omitted from the reported case,
reported case.
123 Volume 5.
6101. CONSIDERATION. 6102.
e. Nonperformance of Condition upon which Subscription for
Stock was Made.
Form No. 6 I o I .'
State of Indiana, ) In the Johnson Circuit Court,
Johnson County, f October Term, iS97.
John Fletcher }
against
David Taylor. )
The above named defendant, in answer to the plaintiff's complaint
herein, alleges, that on the first day of July, i&97, the Evansville,
Indianapolis and Cleveland Straight-Line Railroad Company proposed
to build a railroad from Evansville in this state, to Indianapolis, the
capital thereof, and to run the line thereof on the east side of White,
river, in Johnson county, by doing which the said road would have
run near the lands of defendant, and materially enhanced the value
thereof; that in consideration of the premises, the defendant sub-
scribed to the construction of said road the sum of one hundred dol-
lars, to be paid when the work should be commenced on the end of
the road south from Indianapolis; that on the first day of September,
1 897, on the representation of said railroad company by its agents
that the work had been commenced on said road on its northern end
and immediately south of Indianapolis, the defendant executed the
note sued on as and for his subscription aforesaid, and because of
said representations; and the defendant avers the fact to be that said
company never did commence any work upon the northern end of
said road and immediately south of Indianapolis, or elsewhere, except
on the southern and middle portions of the line. And so the defend-
ant says, that the note was obtained from him by the fraud and false
representations of the payee thereof, and is without consideration
and void.
F. M. Finch, Attorney for Defendant.
( Verification. ) 2
III. ILLEGAL CONSIDERATION. 3
1. Note Given to Compound Offense.
Form No. 6102.
(Conn. Prac. Act, p. 211, No. 387.)
John Doe \ Superior Court,
vs. New Haven County,
Richard Roe. ) January Term, i880.
1. The above answer contains the 3. How Pleaded. In pleading an il-
statement of facts which was held to legal consideration, all the facts which
constitute a good defense in Taylor v. constituted the consideration and which
Fletcher, 15 Ind. 80. rendered it illegal must be pleaded.
2. Verification. For the form of veri- Fisher v. Fisher, 113 Ind. 474; 4 Encycl.
fication in a particular jurisdiction con- of PI. and Pr. 953; I Encycl. of PI. and
suit the title VERIFICATIONS. Pr. 144.
134 Volume 5.
6103. CONSIDERATION. 6104.
Answer.
1. On May first, i87, at Hartford, one James Roe, the son of the
defendant, had feloniously stolen and led away a horse, the property
of the plaintiff.
2. The defendant, in order to compound and settle said felony,
gave the note mentioned in the complaint, upon the agreement of
the plaintiff ^to desist from giving any information of said felony.
Richard Roe,
By Jeremiah Mason, his Attorney.
Form No. 6103.
(Bullitt's Civ. Code Ky. (1895), p. 639.)
( Title of court and cause as in Form No. 6091. )
The defendant, Richard Roe, says that the consideration of the
note sued on was (or -was to the extent of one hundred dollars) the plain-
tiff's agreement to compound a felony alleged to have been committed
by the defendant in the state of Kentucky.
Jeremiah Mason, Attorney.
(Verification as in Form No. 6091.)
Form No. 6104.
Supreme Court, Suffolk County.
John Doe, plaintiff, )
against V Answer.
Richard Roe, defendant. )
The above named defendant for answer to the plaintiff's complaint
herein alleges:*
I. That on or about the first day of August, i897, at the village of
Northport, in said county of Suffolk, Robert Roe, a son of this defend-
ant, feloniously took, stole and carried away from the store of said
John Doe, in said village of Northport, two gold watches, of the value
of fifty dollars each. 1
II. That the said promissory note for one hundred dollars, upon
which this action was brought, was made and delivered by this
defendant to the s>&\& John Due on theyf/'M day of September, i8P7,
in consideration that he, the said John Doe, would not institute any
criminal prosecution against said Robert Roe for said offense, and
would furnish no evidence tending to prove the same against him, 2
1. In a plea that the consideration it is necessary to show that there was
for a note was the compounding of an some agreement or promise on the part
offense, it is not necessary to allege of the obligee to forbear prosecution
that an offense has been committed, if for the crime, or to suppress evidence
a prosecution has been commenced, that would tend to prove it. Barretts,
but it is otherwise if no prosecution Weber, 125 N. Y. 18. But it is not
has been instituted. Cheltenham Fire- necessary to allege in express terms
Brick Co. v. Cook, 44 Mo. 29; McCoy that the maker of a note agreed to com-
v. Green, 83 Mo. 631; Steuben Bank v. pound a crime. It is sufficient if such
Mathewson, 5 Hill (N. Y.) 249; Portner was the intention of the parties and the
v. Kirschner, 169 Pa. St. 472. agreement was such as to carry out
2. To avoid a contract on the ground that intent. Conderman v. Trenchard,
that it was made to compound a felony 58 Barb. (N. Y.) 165.
125 Volume 5.
6105.
CON SID ERA TION.
6105.
and for no other consideration whatever. That said note is there-
fore without consideration, and is illegal and void.
Benjamin F, Butler, Attorney for Defendant.
( Verification. ) x
2. Note Given for Money Used or Lost in Gaming. 2
Form No. 61 05.
(Conn. Prac. Act, p. 211, No. 386.)
( Title of court and cause as in Form No. 6103.)
1. OnJfqylst, i87#, the defendant and the plaintiff played together
at a game of chance, called euchre, for stakes, and, at said gaming, the
plaintiff won 250 of the defendant.
2. The defendant gave the plaintiff the note mentioned in the com-
plaint for said money so staked and lost.
Richard Roe,
By Jeremiah Mason, his Attorney.
1. For the form of verification in a
particular jurisdiction consult the title
VERIFICATIONS.
2. Money Used in Speculating in
Futures. In Benson v. Dublin Ware-
house Co., 99 Ga. 304, it was held that
a promissory note given for money
advanced by the payee to the maker to
be used "as margins in speculating in
cotton futures," and which the lender
had, in the maker's behalf, in fact
" placed " for this purpose, is void, and
that the court erred in striking out the
defendant's plea setting up this defense.
The plea in question, omitting the
formal parts, was as follows:
" For further plea defendant says
that the consideration of said notes was
in whole or in part money advanced by
said Dublin Warehouse Company, to be
used as margins in speculating in cot-
ton futures, or options and loans on
same; that said company made such
advances with full knowledge that the
money was to be used by Fortson dr 3
Co., as margins in speculating in cot-
ton futures; and in fact said company
placed the margins for Fortson &* Co.
Said transaction was a gaming con-
tract, and the promise founded thereon
is founded on an illegal consideration,
and is not binding on defendant. For
further plea defendant says, without
admitting that any partnership existed
between defendant and Thomas E. Fort-
son in the transactions out of which the
debt sued on arose, if it should be held
that they were partners, this defend-
ant says that speculating in cotton fu-
tures was entirely outside the scope of
the partnership business, and this
was well known to plaintiff. The ad-
vances for speculative purposes were
made to Thomas . Fortson, and this
defendant, when he signed the notes
sued on, had no notice or knowledge
of the fact that any portion of the debt
for which said notes were given was
for such advances. For further plea
defendant says, all transactions be-
tween Fortson 6^ Co. and plaintiff out
of which the debt sued on arose were
carried on by said company with
Thomas E. Fortson, this defendant hav-
ing no personal connection with or
knowledge of them. All advances
made by said company to Thomas E.
Fortson in his dealings with it were
charged on the books of said company
to Fortson & Co. , and when defendant
signed said notes he did so relying upon
the correctness of said books and believ-
ing that they were proper charges
against Fortson &* Co. Since signing
said notes he has ascertained, and now
charges, that a considerable portion of
said debt, to wit, one thousand dollars
or other large sum, was for advances
made Thomas E. Fortson individually
as margins in buying and selling cot-
ton futures, and defendant, when he
signed the notes, was entirely mistaken
as to the fact, and the mistake was
brought about by plaintiff's conduct in
improperly charging to Fortson & Co.,
on its books, money advanced to
Thomas E. Fortson individually.
And now comes James A. Benson and
says that the notes sued on were given
to close up an account claimed by
126
Volume 5.
6106 CONSIDERATION. 6107.
Form No. 6106.
(Bullitt's Civ. Code Ky. (1895), p. 639.)
( Title of court and cause as in Form No. 6091. )
The defendant, Richard Roe, says that the consideration of the note
sued on was (or was to the extent of one hundred dollars) money lent by
the plaintiff to the defendant for the purpose of gaming, and that
said note was executed in the state of Kentucky.
Jeremiah Mason, Attorney.
( Verification as in Form No. 6091. )
Form No. 6107.'
State of Minnesota, ) District Court,
County of Ramsey. ) Second Judicial District.
John Doe, plaintiff, )
against V Answer.
Richard Roe, defendant, j
The above named defendant, for answer to the plaintiff's com-
plaint herein, alleges:
I. That on the// day of September, i897, in the city of St. Paul,
in said county of Ramsey, the plaintiff and defendant gambled and
played together with cards at a certain game known as draw-poke r,
for divers sums, on credit, and not for ready money, and that the
plaintiff won from the defendant and defendant lost to plaintiff at
said game the sum of one hundred and twenty-five dollars, no part of
which was paid in money.
II. That the promissory note for the sum of one hundred and twenty-
five dollars, upon which this action was brought, was on said day
made and delivered by the defendant to said plaintiff in payment of
said sum of one hundred and twenty-five dollars, so lost by gambling as
aforesaid, and for no other consideration whatever.
plaintiff to be due it by Fortson &* Co., under the purchase, no skill or labor or
a firm of which it was claimed and expense entered into the consideration,
alleged he was a partner. He says the but the same was a pure specula-
account represented by these notes was tion upon chances, when it is a con-
the balance of account claimed by tract for a sale of goods to be delivered
plaintiff against Fortson & Co., a firm a future day, and where both parties
composed of T. E. Fortson and J. A. are aware that the seller expected to
Benson, and was given to close up said purchase himself to fulfill his contract,
account. He further says the said Defendant further says, that had he
balance of account was the sole and known at the time of indorsing said
only consideration of said notes. He notes that the consideration, in whole
further says, that under the allegations or in part, was for gambling in future
in his original plea and this amend- operations of cotton, as alleged, he
ment, the taking of these notes as would never have indorsed the same,
above set forth was a fraud upon him. and that he signed or indorsed the
He further says that the whole of said same believing it represented a legiti-
notes was for money advanced to Fort- mate debt due by Fortson 6 Co. to
son &> Co., for margins and losses put up plaintiff."
in cotton speculations or futures, as set For a plea in an action on an in-
forth in the original plea. These specu- dorsed note under the statute 9 Ann. c.
lations and dealings in futures being 14, against gaming, see 3 Went. PI. 103.
gambling operations when cotton was 1. Minnesota. Stat. (1894), 6594.
ostensibly bought where there was no New York. Birds. Rev. Stat. (1896),
expectation of delivery of property p. 270, 4.
127 Volume 5.
6108. CON SID ERA TION, 6109.
Wherefore the defendant demands judgment that said complaint be
dismissed, that said promissory note be delivered up and canceled,
and for his costs and disbursements herein, and for such other and
further relief as to the court may seem just.
Gordon E. Cole,
Attorney for Defendant.
( Verification. ) x
3. Note Given for Liquors Sold Without License.
Form No. 6108.
(Conn. Prac. Act, p. 211, No. 388.)
{Title of court and cause as in Form No. 6102.)
1. The only consideration for the note, mentioned in the com-
plaint, was the illegal sale of intoxicating liquors, sold by the
(payee) to said defendant in New Haven.
2. Said (seller), at the time of such sale, had no license for the
sale thereof, as required by law.
Richard Roe,
By Jeremiah Mason, his Attorney.
4. Contract Against Public Policy.
Form No. 6109.
(Precedent in Board of Education v. Thompson, 33 Ohio St. 322.)'
[ The Board of Education of Hartford~\
Township, plaintiff, Court of Common Pleas
against > Trumbull County.
H. B. Thompson, A. O. Woodford and Answer.
Asa Neu'man, defendants.
The defendants above named, answering the plaintiff's petition
herein, allege:] 3
1. That they are sureties merely of Thompson, for his accommo-
dation, without their understanding what was the consideration,
supposing it was for a lawful purpose; but they have since learned,
and so aver the fact to be, that there was no legal or valid con-
sideration therefor.
2. The said defendants say fora second defense that they signed
said paper writing as sureties merely of said Thompson, and without
any consideration, under the circumstances and suppositions herein-
before stated, and not otherwise; and that they have now learned
1. For the form of verification in a legally taken from the treasury, yet
particular jurisdiction consult the title they could not, in the absence of statu-
VERIFICATIONS. tory authority, adopt a contract made in
2. In this case it was held that the violation of law.
sureties were not estopped to set up the 3. The words enclosed by [ ] will
illegality of the transaction; and that not be found in the reported case,
although the plaintiffs might do any but have been added to render the form
act in disaffirmance of such illegal con- complete,
tract and recover back the money il-
128 Volume 5.
6110. CONSIDER A TION. 6110.
and here aver the facts and circumstances of the making of said
paper to have been as follows, and not otherwise: That on the first
Monday of April, i87/, the said Thompson was duly elected treasurer
of said township of Hartford, and was then duly qualified and entered
upon the duties of his said office, and continued to be and was the
treasurer of said township until theyfrj/ Monday of April, i87#, when
one Elivin Bennett was duly elected and qualified treasurer of said
Hartford township, as his successor, and entered upon the duties of
his office, and was and continued to be the treasurer of said Hartford
township until the first Monday in April, i875, and at the expiration
of his said office the said Thompson had in his hands about eight
hundred dollars of school funds for school purposes, which, accord-
ing to the statutes in such case made and provided, it was the duty
of said Thompson to have then, at the expiration of his term of service
as such treasurer, to have delivered over to his successor in office,
the said Bennett, as plaintiffs well knew, yet the plaintiffs, in contra-
vention of the requirements and provisions of the statutes in such
case made and provided, in utter disregard of their own duties, and
thereby enticing and persuading and aiding and inducing the said
Thompson to disregard his duty, and contemptuously disobey said
statutes, made and induced him, the said Thompson, to withhold the
delivery of said moneys, so then in his hands as treasurer, to his
successor in office, by making and delivering to them, the plaintiffs,
said writing set forth in said petition, all which was done by the
plaintiffs as well as said Thompson in their own wrong, in contra-
vention of the statutes, against public policy and good morals, and
without any authority; whereupon these defendants submit that said
writing is utterly void, and no just right of action hath accrued
thereon and thereby to said plaintiffs.
[Joseph Story, Defendants' Attorney.] 1
IV. CONSIDERATION TAINTED WITH USURY.
Form No. 6 i i o.
(Commencing as in Form No. 6104, and continuing down to *.)
I. That the promissory note mentioned in plaintiff's complaint was
made and delivered to plaintiff upon the usurious agreement between
defendant and plaintiff, that defendant should pay plaintiff, and that
plaintiff should reserve and secure to himself for the loan of money,
a greater sum than at the rate of six per cent, per annum, 2 to wit, at
the rate of twelve 3 per cent, per annum.
1. The words enclosed by [ ] will sets up that the contract sued on is
not be found in the reported case, usurious according to the laws of a
but have been added to render the form foreign state, the answer should first
complete. state what those laws were^t the time
2. The answer should state what the of the transaction and then set out
usurious agreement was, between facts showing that the contract was
whom' made, and the amount of the void according to those laws. Mayer
usury; and a general allegation of usury v. Louis, 12 Abb. Pr. N. S. (N. Y. Su-
is not sufficient. Griggs v. Howe, 31 preme Ct.) 5; Curtis v. Masten, n
Barb. (N. Y.) loo; Manning v. Tyler, Paige (N. Y.) 15.
21 N. Y. 567. And where the answer 3. Amount of Usury. A statement
5 E. of F. P. 9. 129 Volume 5.
6110. CON SID ERA TION. 6110.
II. That said sum was deducted and reserved from the amount of
said note by plaintiff, and the balance only paid to this defendant;
that is to say, that this defendant agreed to pay, and the plaintiff
agreed to receive, one hundred and twenty dollars for said loan, the plain-
tiff reserving and securing to himself for the loan of money on said note,
until the maturity thereof, one hundred and twenty dollars.
{Signature and verification as in Form No.
that the amount of usury exacted was ant believes was about seven or eight
" about enough, as he said, to get him dollars," was held sufficient. Dagal v.
a barrel of flour, which amount defend- Simmons, 23 N. Y. 491.
130 Volume 5.
CONSOLIDATION OF ACTIONS. 1
I. BY PLAINTIFF, 132.
II. BY MOTION AND ORDER, 132.
i. The Application, 132.
a. Notice of Motion, 132.
b. Affidavit in Support of Motion ^ 133.
c. Motion, 134.
3. The Order, 134.
a. Consolidating Actions, 134.
(1) Generally, 134.
(2) And Remoiring Cause from Another Court, 135.
(3) And Enjoining Further Proceedings at Law, 135.
b. Directing One Action to Abide the Event of Another, 136.
III. BY CONSENT OF PARTIES, 136.
i. The Stipulation, 136.
9. The Order, 137.
1. For statutes relating to the subject
of consolidation of actions see as fol-
lows:
Alabama. Code Civ. Proc. (1886),
2742.
Arizona. Rev. Stat. (1887), 918.
Arkansas. Sand. & H. Dig. (1894),
5707, 57o8.
California. Code Civ. Proc. (1897),
1048, 1195.
Colorado. Mills' Anno. Stat. (1891),
-38, 2890.
Florida. Rev. Stat. (1892), 1003.
Georgia. 2 Code (1895), 4846,
4943-
Idaho. Rev. Stat. (1887), 4926.
Illinois. Starr & C. Anno. Stat.
(1896), p. 2423, par. 53.
Indiana. Burns' Anno. Stat. (1894),
7251, 7260.
Iowa. Anno. Code (1897), 3644.
Kansas. Gen. Stat. (1889), | 4228,
4229.
Louisiana. Garland's Rev. Code
(1894), S 442, 443-
Maryland. Pub. Gen. Laws (1888),
art. 50, g 7, 8.
Michigan. How. Anno. Stat. (1882),
S 7375- 7376.
Minnesota. Stat. (1894), 5271,
6238.
Missouri. Rev. Stat. (1889), 2189,
2190, 6221-6224.
Montana. Code Civ. Proc. (1895),
1894.
Nebraska. Comp. Stat. (1897), ?*
5741, 5742.
Nevada. Gen. Stat. (1885), 3524.
New Jersey. Gen. Stat. (1895), p.
2554, 121; p. 2581, 289.
New Mexico. Laws (1897), p. 73,
117.
New York. Cote Civ. Proc.,
817-819, 1989 (Birds. Rev. Stat. (1896),
p. 19, |g 34-36; p. 27, 77).
North Dakota. Rev. Codes (1895),
5733.
Ohio. Bates' Anno. Stat. (1897),
5120.
Oklahoma. Stat. (1893), 4023, 4024.
Oregon. Hill's Anno. Laws (1892),
514.
Rhode Island. Gen. Laws (1896), c.
233, 21.
Utah. Rev. Stat. (1898), 3489.
Wisconsin. Sanb. & B. Anno. Stat.
(1889), 2792.
Wyoming. Rev. Stat. (1887), 2507.
131
Volume 5.
6111. CON SO LI DA TION OF A CTIONS. 6112.
I. BY PLAINTIFF.
Form No. 6 i 1 1 . ;
Supreme Court, Suffolk County.
John Doe, plaintiff,
against
Richard Roe, defendant.
Supreme Court, Suffolk County.
John Doe, plaintiff,
against
Samuel Short, defendant.
You will please take notice that the above entitled actions have
been consolidated into one action by the plaintiff, and are hereafter
for all purposes to be considered as one action.
May 10, 1 897.
Jeremiah Mason, Attorney for the Plaintiff,
Northport, N. Y.
To Joseph Story, Esq.,
Defendant's Attorney.
II. BY MOTION AND ORDER.
1. The Application,
a. Notice of Motion. 1
Form No, 6112.
Supreme Court, Suffolk County.
John Doe, plaintiff,
against
Richard Roe, defendant.
County Court, Suffolk County.
John Doe, plaintiff,
against
Richard Roe, defendant.
You will please take notice that upon the annexed affidavit and the
pleadings in the above entitled actions the undersigned will move
the court, at a special term thereof, to be held at the county court-
house, in the town of Riverhead* on the tenth day of May, i87, at
ten o'clock in the/<?raioon of that day, or as soon thereafter as coun-
1. Neiv York. Code Civ. Proc., at one time and against the same de-
819 (Birds. Rev. Stat. (1896), p. 19, 36). fendants brought a separate action in
2. For forms of notices of motion, each of the counties of the state for one
generally, consult the title MOTIONS. and the same libel, it was held that the
3. New York. Code Civ. Proc., motion to consolidate was properly
817 (Birds. Rev. Stat. N. Y. (1896), p. made in the county in which all the
19, 34). parties resided. Percy v. Seward, 6
4. Where Made. Where the plaintiff Abb. Pr. (N. Y. Supreme Ct.) 326.
132 Volume 5.
6113. CON SOLI DA TION OF ACTIONS. 6113.
sel can be heard, that these two actions be consolidated into one,
[and that for that purpose the above entitled action in the County
Court be removed into the Supreme Court and so there consoli-
dated.] 1
May 1, 1 897. Joseph Story, Attorney for Defendant,
Northport, N. Y.
To Jeremiah Mason, Esq.,
Attorney for Plaintiff.
b. Affidavit in Support of Motion. 9
Form No. 6113.*
{Title of the several causes as in Form No. 6112.)
State of New York, \
County of Suffolk, j Sl
Richard Roe, being first duly sworn, says that he is the defendant
in all the above entitled actions, which are pending in the courts
above named, and in all of which the parties, plaintiffs and defend-
ants, are the same; that each of said actions is brought upon a
promissory note alleged to have been made by defendant; 4 that the
defense in all these actions is the same, to wit, payment, as appears
from copies of the answers hereto annexed, and that deponent is
advised and believes that the questions which will arise and are to
be tried are substantially the same in all of said actions (or that
defendant does not intend to interpose any defense to said actions);* that
the summons and complaint in said actions were served on this
defendant respectively on the fifteenth and seventeenth days of March,
1 897, and that the said causes are at issue by the service of his
answer to the said complaint on \hzfirst day of April, i897; that
plaintiff has refused to consent to the consolidation of said actions,
although requested by this deponent.
Richard Roe.
Subscribed and sworn to before me this fifteenth day of April, i8#7.
Norton Porter, Notary Public Suffolk County.
1. Removal of Cause. The removal 5. It must be made to appear that the
of a cause pending in another court defense to all the notes or demands is
into the supreme court for the purpose the same, or that there is no defense,
of consolidation is authorized by N. Y. Gerding v. Anderson, 64 Ga. 304 ;
Code Civ. Proc., 818 (Birds. Rev. Logan v. Mechanics' Bank, 13 Ga. 201;
Stat. N. Y. (1896), p. 19, 35). Where Worley v. Glentworth, 10 N. J. L.
both causes are pending in the same 241; Boyle v. Staten Island, etc., Land
court, the words enclosed by [] should Co.. 87 Hun (N. Y.), 233; Campbell
be omitted. Printing Press, etc., Co. v. Lyddy, I
2. For forms of affidavits, generally, Civ. Proc. Rep. (N. Y. Marine 60364;
consult the title AFFIDAVITS, vol. i, p. Wilkinson v. Johnson, 4 Hill (N. Y.)
548. 46; Dunning v. Auburn Bank, 19
3. New York. Code Civ. Proc., Wend. (N. Y.) 23. And where there is
817 (Birds. Rev. Stat. (1896), p. 19, 34). a defense the nature thereof must be
4. It must appear that the causes of stated. Dunn v. Mason, 7 Hill (N. Y.)
action are such as maybe joined in the 154; Crane v. Koehler (N. Y. Com. PI.
same declaration. Dunning v. Auburn 1858), cited in Percy v. Seward, 6 Abb.
Bank, 19 Wend. (N. Y.) 23. Pr. (N. Y. Supreme Ct.) 326.
133 Volume 5.
6114. CON SOLI DA TION OF ACTIONS. 6115.
e. Motion. 1
Form No. 6 1 1 4 . 2
State of Ohio. ) ^ /. ^ D7
^ \ Court of Common Pleas.
Lucas County, ss. j
John Doe, plaintiff,
against
Richard Roe, defendant.
And now comes the above named defendant, by Joseph Story, his
attorney, and moves the court here (or and moi>es the Honorable John
Marshall, one of the judges of said court) to consolidate into one action
the three several actions now pending in said court, in each of which
said actions the above named John Doe is plaintiff and the above
named Richard Roe is defendant, and which said actions could have
been joined in one action.
Dated the tenth day of May, iS97.
Joseph Story, Defendant's Attorney.
2. The Order. 3
a. Consolidating Actions.
(1) GENERALLY. 4
Form No. 6 i i 5 . B
At a Special Term of the Supreme Court held in and for the
County of Suffolk, at the County Court-house in Riverhead, in said
County, on the tenth day of May, iS97.
Present: Hon. Wilmot M. Smith, Justice.
^Title of the several causes as in Form No. 611%.}
On reading and filing the defendant's affidavits in these actions
(enumerating all the motion papers), and after hearing Joseph Story,
Esq., for defendants, and Jeremiah Mason, Esq., for plaintiff,*
Ordered, that the f several causes above entitled be, and hereby
are, consolidated into one action in this court, and that the several
statements of the causes of action in the respective complaints stand
as the complaint in said consolidated action (or that the plaintiff hare
leave or be required to serve an amended complaint in the consolidated
action within fifteen days from the service of this order), and that the
plaintiff pay the costs of the first action up to the date of this order,
and ten dollars costs of this motion. 6
Enter: W. M. S., J. ,<>. C.
1. For forms of motions, generally, wards, 77 Wis. 479; The Rio Grande,
consult the title MOTIONS. 19 Wall. (U. S.) 179.
2. Ohio. Bates' Anno. Stat. (1897), 5. New York. Code Civ. Proc., S
5120. 817 (Birds. Rev. Stat. (1896), p. 19, 34).
3. For forms of orders, generally, 6. Costs. Where the court directs a
consult the title ORDERS. consolidation of suits, it can only
4. Precedents. See also orders in direct the costs of the rule to be paid
Dupignac v. Dupignac, 12 Civ. Proc. by plaintiff and should leave the gen-
Rep. (N. Y. Supreme Ct.) 351; Den v. eral costs to abide the result. Buie v.
Kimble, 9 N. J. L. 338; Biron v. Ed- Kelly, 7 Jones L. (52 N. Car.) 266.
134 Volume 5.
6116. CON SO LI DA TION OF A CTIONS. 6117.
(2) ANt REMOVING CAUSE FROM ANOTHER COURT. i
Form No. 6 1 1 6 .*
(Commencing as in Form No. 6115, and continuing down to f) above
entitled action pending in the County Court be and hereby is
removed to the Supreme Court, and that the several causes of action
above entitled be and hereby are consolidated (concluding as in Form
No. 6115).
(3) AND ENJOINING FURTHER PROCEEDINGS AT LAW.
Form No. 6117.
(Precedent in Furman v. Greenville, etc., R. Co., 3 S. Car. 432.)
Isaac W. Hayne, Atfy Gen I South Carolina,
vs.
The Greenville 6 Columbia Railroad Company.
Upon hearing the information filed by Isaac W. Hayne, Attorney
General, on behalf of the State in the above case, on motion of said
Attorney General, It is ordered, that Thomas C. Perrin, of Abbeville
District, the Executor of James M. Perrin, John B. Earle, of Green-
ville District, and George Sims, of Richland District, parties who are
represented as having commenced suit at law in the Court of Common
Pleas, sitting for their districts respectively, against the Greenville
df Columbia Railroad Company, be and they are hereby enjoined and
restrained from the further prosecution of said suits at law, without
leave had and obtained from this court; and writs of injunction are
hereby ordered to issue from the Register of this court, against the
said Thomas C. Perrin, John B. Earle and George Sims, requiring their
observance of the above order.
It is further ordered, that all separate proceedings in the cases in
equity of Charles M. Furman, Trustee, against the Greenville and
Columbia Railroad Company, instituted in the District of Richland, and
of Benjamin F. Hugcr and John E. Phillips, Trustee, against the
Greenville and Columbia Railroad Company, instituted in the District
of Charleston, be stayed; that the said cases from the date of this
order be considered as consolidated with the above case, and that all
future orders and proceedings in any of these cases be taken as in
the case of The Attorney General against The Greem'ille and Columbia
Railroad Company, C. M. Furman, Trustee, et al., and that parties to
to the two first named cases be notified of this order.
It is further ordered, that all persons whatever, having claims
against the Greenville and Columbia Railroad Company, be and they are
hereby stayed, restrained and enjoined from instituting and carrying
on any suit or suits, or proceeding or proceedings, in any court in
this State, against the Greenville and Columbia Railroad Company, ex-
cept by proceedings in this case, or by leave of this court first obtained,
and that this order be published by James Tupper, Esquire, one of
1. Precedent. See Solomon -. Bel- 2. New York. Code Civ. Proc.,
den, 12 Abb. N. Cas. (N. Y. Supreme 8iS (Birds. Rev. Stat. (1896). p. 19, 35).
Ct.) 63.
135 Volume 5.
6118. CON SO LI DA TION OF ACTIONS. 6119.
the Masters of this court, in at least one paper each in Charleston*
Columbia and Greenville.
It is further ordered, that the above orders are without prejudice
to the equities of the parties concerned, and that upon the coming in
of the answers, and due notice given, application may be made to
annul or modify the same.
April 1, 1868. Henry D. Lesesne.
b. Directing One Action to Abide the Event of Another.
Form No. 6 1 1 8 .'
(Commencing as in Form No. 6115, and continuing down to *.)
Ordered, that all the causes abide the event and final determina-
tion of one of them, which the plaintiff may select and notice for
trial, and that proceedings in all the remaining actions be stayed
until the trial of such selected action, and that whatever judgment
may be finally rendered in the cause noticed for trial shall be entered
in all the other causes, 2 unless the defendant consent that such
remaining actions abide the event of the action tried, in case the
defendant should appeal from any judgment recovered against him.
Enter. W. M. S., J. S. C.
III. BY CONSENT OF PARTIES.
1. The Stipulation. 3
Form No. 6119.
(Precedent in Pons v. Hart, 5 Fla. 458.)
William Proctor )
vs. > Replevin for Slaves.
Isaiah D. Hart. )
It is agreed between the counsel in this cause that the jury now
impaneled in the case of Isaiah D. Hart vs. John Pons, be also sworn
in this cause, and that the same be submitted to them, and that the
court render such judgment in both causes as may seem right and
proper from the finding of the jury.
Sanderson 6 Call,
For Isaiah D. Hart.
Philip Fraser,
For Proctor 6 Pons.
1. See, as authorizing this order un- like liberty to the plaintiff to apply then
der 2 N. Y. Rev. Stat. 480, 38 (now for a consolidation."
Birds. Rev. Stat. N. Y. (1896), p. 19, 3. That One Cause Abide Event of
34), Clark v. Metropolitan Bank, 5 Another. In Gillmore v. American
Sandf. (N. Y.) 665. Central Ins. Co., 65 Cal. 64, it was held
2. Liberty to Consolidate after Trial. that where two causes alike in every
If liberty to the defendant to move for material respect, and having the same
a consolidation after trial is reserved, attorneys on both sides, are pending
the following words should be here in- in the same court, a stipulation that one
serted: "with liberty to the defendant of them shall abide the determination
after such trial to move for a consoli- of the other, and that final judgment
dation of the remaining suits, and with may be entered in accordance with such
136 Volume 5.
6120. CONSOLIDATION OF ACTIONS. 6120.
2. The Order. 1
Form No. 6120.
(Precedent in Morgan County v. Thomas, 76 111. 136.)
[State of Illinois, ) In the Circuit Court.
County of Morgan. J To the Special September Term, i87&
William Thomas et al. }
against > In Chancery.] 2
The County of Morgan et al. )
It is ordered, by consent, that the case of William Thomas against
the County of Morgan and others, be tried with the case of the County
of Morgan against The Peoria, Pekin and Jacksonville Railroad Com-
pany and others, as one suit.
2d. That the depositions taken in the case of the County of Morgan
against the Peoria, Pekin and Jacksonville Railroad Company, may be
read on the trial of said cases as so tried.
The foregoing stipulations shall in no respect diminish the rights of
said Thomas, but he shall have and may exercise all the rights of
which he would be possessed if his case were tried separately.
The foregoing stipulations shall extend to the cases of M. H. L.
Schooley against Morgan County and others, and B. S. West against the
same.
The foregoing stipulations shall in no respect diminish the rights
of the Peoria, Pekin and Jacksonville Railroad Company, or the rights
of Isaac L. Morrison, or the County of Morgan, but each and all of said
parties shall have and may exercise all the rights of which he or they
would be possessed if the cases were tried separately.
determination, does not lose its effect mination of such appeal, and upon such
for the reason that a judgment rendered final determination, judgment and
in the other case is reversed on the decision in said action wherein said
ground of error in overruling a The Lycoming, etc., is defendant, either
demurrer to the complaint, the plead- party, without notice, shall and may
ings in that case being thereupon cause to be entered a judgment in this
amended without making any sub- action corresponding to and like the
stantial change in the issues and final said final judgment, and of the same
judgment obtained on the merits. The date in said other action; and if such
stipulation in the case, omitting formal judgment shall be for the plaintiff, the
parts, was as follows: amount for which the same shall be
"This cause being regularly called entered shall be six hundred and fifty
for trial, the parties appearing by their dollars and costs; and if for the de-
respective attorneys, and both parties fendant, then for its costs allowed by
consenting in open court that the issues law.
in this cause are identical with those of An order pursuant to this stipulation
the other action pending in this court, shall be entered in the minutes of this
No. 4,jqc), entitled Lucy Gilmore v. The court, i2th May, 1879."
Lycoming Fire Insurance Company of Consolidation of Appeal*. For form of
Afuncy,Pa. stipulation to consolidate appeals con-
It is stipulated and agreed that all suit the title APPEALS, vol. I, Form No.
proceedings herein shall be stayed until 1931.
final judgment and decision in said 1. For forms of orders, generally,
action wherein the Lycoming Fire consult the title ORDERS.
Insurance Company of Muncy, Pa., is 2. The words and figures enclosed by
defendant, and in case of an appeal in [ ] will not be found in the reported
said last named action, then said pro- case, but have been added to render
ceedings are stayed until the final deter- the form complete.
137 Volume 5.
CONSOLIDATION OF CORPORATIONS.
See the title CORPORA TIONS.
CONSPIRACY.
BY Jos. R. LONG.
I. CRIMINAL PROSECUTION FOR CONSPIRACY, 140.
i. Falsely to Charge One with Criminal Offense, 142.
a. Of Adultery, 143.
b. Of Attempt at Murder, 145.
c. Of Being the Father of a Bastard, 146.
d. Of Larceny, 148.
8. To Cheat or Defraud, 149.
a. A Bank, 152.
b. A County, 158.
c. An Individual, 159.
(1) Generally, 159.
(2) By Inducing Surrender of Bond on Pretended
Conveyance, 163.
(3) By Making One Drunk and Playing Falsely at
Cards, 164.
d. The Public, by Uttering False Bank Notes, 165.
e. The State, 166.
3. To Commit Certain Crimes, 167.
a. Abduction of Child, 167.
b. Abortion, 168.
c. Assault and Battery, 169.
d. Breaking Jail, 170.
(1) To Escape, 170.
(2) To Injure or Kill Prisoner, 171.
e. Burglary, 171.
f. Destroying Property, 172.
(1) Dwelling-house, 172.
(2) Railroad Tracks, 173.
g. Murder, 173.
h. Procuring Defilement of Young Female, 1 74.
/. Procuring Elopement of a Minor Daughter, 176.
j. Procuring Marriage Falsely to Appear of Record, 177.
k. Robbery, 179.
/. Seduction by Sham Marriage, 181.
m. Soliciting Bribes, 182.
138 Volume 5.
CONSPIRACY.
4. To Hinder Trade or Commerce, 184.
a. By Formation of Trust, 184.
b. By Obstructing Business of a Corporation, 186.
c. By Preventing Corporation from Employing Certain
Workmen, 187.
d. By Preventing Workmen from Obtaining Employment,
190.
5. To Obstruct Justice and the Due Administration of Law, 193.
a. By Assaulting a Public Officer, 194.
b. By Giving False Evidence and Suppressing Facts on
Trial, 194.
c. By Unlawfully Obtaining a Decree of Divorce, 196.
d. By Unlawfully Taking Intoxicating Liquors Held under
Lawful Seizure, 197.
e. By Securing Appointment to Public Office, 198.
6. Under Federal Statutes, 200.
a. To Cast Away Vessel with Intent to Injure Underwriters,
202.
b. To Defraud the United States, 203.
(1) By Means of Pretended Entry of Public Lands,
204.
(2) By Removing Distilled Liquors to Evade Internal
Revenue Tax, 205.
c. To Make Fictitious Census Returns, 207.
d. To Plunder a Wrecked Steamboat, 210.
e. To Prei'ent Enjoyment of Elective Franchise and Civil
Rights of Citizens, 210.
(1) By Preventing Homestead Entry, 210.
(2) By Preventing Exercise of Right of Suffrage,
211.
(3) By Procuring Inspector of Elections to Neglect
his Duty, 213.
II. CIVIL ACTIONS FOR CONSPIRACY, 216.
1. Falsely to Accuse Plaintiff of Criminal Offense, 217.
2. To Cheat and Defraud, 2 1 9.
3. To Hinder Trade or Commerce, 220.
a. By Boycotting Manufacturer, 220.
b. By Extorting Money from Employer by Threatening to
Induce Workmen to Leave his Employ, 223.
c. By Injuring Credit of Retail Dealer and Preventing his
Obtaining Supplies, 224.
CROSS-REFEREXCES.
For Forms of Indictments for Conspiracy to Import Chinese Laborers,
see the title EXCLUSION OF CHINESE LABORERS.
For Forms of Indictments for Riotous Conspiracy, see the title RIO T,
ROUT, UNLAWFUL ASSEMBLY.
For matters of Practice, see the title CONSPIRACY, 4 ENCYCLOP/EDIA
OF PLEADING AND PRACTICE, p. 706.
For matters of Substantive Law, see the title CONSPIRACY, 6 AMERI-
CAN AND ENGLISH ENCYCLOPEDIA OF LAW (20! ed.), p. 830.
139 Volume 5.
6121.
CONSPIRACY.
6121.
I. CRIMINAL PROSECUTION FOR CONSPIRACY. 1
1. For formal parts of an indictment,
information or criminal complaint
consult the titles INDICTMENTS; INFOR-
MATIONS; CRIMINAL COMPLAINTS.
Conspirators, How Described. An in-
dictment charging the defendant with
conspiring with divers others to the jury
unknown, is good though the other
conspirators were known to the jury
and their names might have been set
forth. People v. Mather, 4 Wend. (N.
Y.) 229, 21 Am. Dec. 122.
Charge of Conspiracy. Each count in
an indictment for conspiracy must con-
tain an express charge in itself of the
conspiracy. Merely charging an overt
act done in pursuance of a conspiracy
set forth in a previous count, without
any direct charge of a conspiracy, is
not sufficient. State v. Norton, 23 N. J.
L. 33. Thus where the fourth count in
an indictment alleged the performance
of an act in pursuance of " the said un-
lawful and corrupt conspiracy," but did
not set forth what the said conspiracy
was, the count was held bad. U. S. v.
Reichert, 32 Fed. Rep. 142.
" Unlawfully." The use of the word
"unlawfully" is unnecessary, though
usual. The term "conspiracy" of it-
self implies illegality. Scholtz's Case,
5 C. H. Rec. (N. Y.) 112.
" Did conspire, combine, confederate and
agree together" is the most approved
manner of charging the conspiracy, and
while undoubtedly not absolutely es-
sential this form should be observed
unless the indictment be drawn under
a statute using other language. 3 Rus-
sell on Crimes 159; 3 Chit. Cr. L. 143.
Object of Conspiracy. To constitute a
conspiracy the purpose to be effected
by it must be unlawful, either in respect
of its nature or in respect of the means
to be employed for its accomplishment,
and the intended act, where it has not a
common-law name to import its nature,
must, in order to show its illegality, be
set forth in an indictment for conspiracy
with as much certainty as would be
necessary in an indictment for the per-
petration of it, otherwise it would not
be shown to be criminal, nor would the
confederates be shown to be guilty.
Hartmann i>. Com., 5 Pa. St. 60; State v.
Crowley, 41 Wis. 271.
It is never enough that the purpose
or the means are so described that they
may be unlawful. If that is left uncer-
tain, the indictment is fatally defective.
It must appear to the court that, if the
facts alleged are proved as they are
stated, without any additional fact or
circumstance, there can be no doubt of
the illegality of the conduct charged,
nor of its criminality. States. Parker,
43 N. H. 83. If the facts averred in
an indictment for conspiracy do not
amount to the crime, the indictment is
not aided by matter preceding or fol-
lowing the direct averments, as that the
defendants acted unlawfully, deceit-
fully, unjustly, to the great damage,
etc. Com. v. Hunt, 4 Met. (Mass.) in.
Alleging Means. It is well settled
that where the conspiracy is to do an
act in itself unlawful it is not necessary
to set forth the particular means by
which the conspirators intended to effect
the illegal object. It is sufficient to aver
the act of conspiring and the illegal ob-
ject of the conspiracy. But where the
object of the conspiracy is lawful or in-
different, and the act of conspiring be-
comes indictable only because of the
illegal means intended to be employed,
the means must be fully alleged. 3
Russell on Crimes, 148, 149.
Iowa. State v. Jones, 13 Iowa 269;
State v. Potter, 28 Iowa 554; State v.
Stevens, 30 Iowa 391; State v. Harris,
38 Iowa 242; State v. Savoye, 48 Iowa
562; State v. Grant, 86 Iowa 216.
Maine. State v. Ripley, 31 Me. 386;
State v. Roberts, 34 Me. 320; State v.
Mayberry, 48 Me. 218.
Massachusetts. Com. v. Hunt, 4
Met. (Mass.) in; Com. v. Shedd, 7
Cush. (Mass.) 5 14.
Michigan. People v. Richards, I
Mich. 216; Alderman v. People, 4 Mich.
414; People v. Clark, 10 Mich. 310; Peo-
ple v. Arnold, 46 Mich. 268; People v.
Petheram, 64 Mich. 252.
New Hampshire. State &. Burnham,
15 N.H. 396; State z/. Parker, 43 N.H. 83.
New York. People v. Everest, 51
Hun (N. Y.) 19; Cromwell's Case, 3
C. H. Rec. (N. Y.) 35.
Vermont. State v. Noyes, 25 Vt. 415;
State v. Keach, 40 Vt. 113,
Wisconsin. State v. Crowley, 41
Wis. 271.
United States. Pettibone v. U. S.,
148 U. S. 197.
England. Reg. v. Seward, 3 N. &
M. 557, i Ad. & El. 706, 28 E. C. L. 185;
Rex v. Fowler, i East P. C. 461, note.
See also Rex v. Tanner, i Esp. N. P. 306;
Rex v. Edwards, 8 Mod. 320.
140
Volume 5.
6121.
CONSPIRACY.
6121.
An elaborate review of the general
doctrine as to alleging the means in-
tended to be employed in effecting the
object of a conspiracy is to be found in
Com. v. Barger, 14 Phila. (Pa.) 368. In
this case Hare, P. J., said: "The subject
* * * may be considered under the
following heads: 1st. Where the end
which the alleged conspirators have in
view is criminal and punishable as
such at common law. 2d. Where it is
innocent, and the offense consists in an
agreement to accomplish it by unlaw-
ful means. 3d. Where, though not
criminal at common law, it is made
punishable by statute. 4th. Where the
accused are charged with combining to
effect an end, which, though unlawful,
would not have been criminal had it
been the act of one as where it is
agreed that A shall tell a falsehood
with intent to cheat, and B corroborate
it. 5th. Where combining to effect an
unlawful purpose has been made pun-
ishable by statute, without regard to
the means employed, if they are such
as tend to the accomplishment of the
end. All the authorities concur that
where the offense charged is an agree-
ment to commit a crime, it is not neces-
sary to set forth the intended means,
because these may be known only to
the guilty parties, and may vary with
time, or as opportunity offers. * * *
It is not less clear under the authorities,
and on principle, that an indictment for
a conspiracy to effect a lawful object is
demurrable unless it avers that the par-
ties agreed to use some unlawful means,
which must be described with certainty
as being the gist of the offense. The
question which arises under the third
head is more complicated, but seem-
ingly depends on whether the statute
makes the act punishable at all events,
or only when it is accomplished by cer-
tain means; for in the latter case what
is really forbidden is the means, and
these must be set forth in order to show
that the defendants designed to violate
the statute. The fourth head presents
the following question : Is a joint
scheme to defraud punishable at com-
mon law, irrespective of the means by
which the parties intend to carry it
into effect ? * * * The better opinion
would seem to be that such a conspiracy
is criminal per se, and if so, nothing
more is requisite than to allege and
prove that it exists. * * * Where a
statute declares that it shall be criminal
to conspire for the attainment of a cer-
tain end, it will be enough to aver that
the parties so combined, contrary to the
statute, and the pleader need not set
forth the means by which they proposed
to make their intent effectual."
This opinion was referred to with
approval in 2 Whart. Cr. L. (gth ed.)
190, note. The particular conspiracy
before the court fell under the fifth class
and the indictment was held sufficient
without alleging the specific means
(overruling Com. v. Bracken, 14 Phila.
(Pa.) 342).
Allegation of Overt Acts. Where the
conspiracy is itself unlawful, it is not
necessary to set forth in the indictment
acts done by the conspirators in pur-
suance of the unlawful agreement; the
gist of the offense is the conspiracy.
2 Whart. Cr. L., 2335.
Michigan. People v. Richards, I
Mich. 216; Alderman v. People, 4 Mich.
414; People v. Saunders, 25 Mich. 119;
People v. Arnold, 46 Mich. 268; People
v. Dyer, 79 Mich. 480.
New York. Lambert v. People, 9
Cow. (N. Y.) 578 ; People v. Chase, 16
Barb. (N. Y.) 495; People v. Mather, 4
Wend. (N. Y.) 229, 21 Am. Dec. 122;
contra now in New York by statute, ex-
cept in certain cases.
Vermont. State v. Noyes, 25 Vt. 415.
England. Rex v. Eccles, I Leach, C.
C. 274; Reg. v. Best, I Salk. 174; Rex v.
Seward, I Ad. & El. 706, 28 E. C. L.
185, 3 N. & M. 557. Rex v. Kinnersley,
I Stra. 193.
But in several states it is provided by
statute that no agreement, except to com-
mit a felony upon the person of another,
or to commit arson or burglary, shall
be deemed a conspiracy, unless some
act besides such agreement be done to
effect the object thereof, by one or more
of the parties to such agreement.
California. Pen. Code (1897), 184.
Minnesota. Stat. (1894), 6425
Missouri. Rev. Stat. (1889), 3781.
Montana. Pen. Code (1895), 323.
New Jersey. Gen. Stat. (1895), p.
1093; Wood v. State, 47 N. J. L. 180.
New York. Pen. Code, 171; Peo-
ple v. Chase, 16 Barb. (N. Y.) 495.
North Dakota. Rev. Codes (1895),
7040, 8194.
South Dakota. Dak. Comp. Laws
(1887), 6427, 7383.
Tennessee. Code (1896), 6695.
Utah. Rev. Stat. (1898), 4158.
Wisconsin. Anno. Stat. (1889),
4568.
See also
141
Volume 5.
6121.
CONSPIRACY.
6121.
1. Falsely to Charge One with Criminal Offense.
Arkansas. Sand. & H. Dig. (1894),
1505-1509-
Kansas. Gen. Stat. (1889), 5277.
The New Jersey statute, in requiring
an overt act, does not exact a full
execution of the conspiracy to render it
indictable. State v. Hickling, 41 N. J.
L. 208, 32 Am. Rep. 198; Madden v.
State, 57 N. J. L. 324. Nor must it be
understood that the acts set out consti-
tute all the means used to accomplish
the object of the conspiracy. Madden
v. State, 57 N. J. L. 324; State v. Young,
37 N. J. L. 184.
An indictment charging a conspiracy
to do an act in itself criminal, and also
the commission of such act, is not bad
for duplicity, where no conviction is
sought on account of the overt acts.
State v. Grant, 86 Iowa 216. See also
State v. Kennedy, 63 Iowa 197.
If an indictment for conspiracy is in-
sufficient, the defective allegations are
not aided by averments of overt acts
done in pursuance of the conspiracy.
Reg. v. King, 7 Q. B. 782, 53 E. C. L.
782; U. S. v. Britton, 108 U. S. 199;
U. S. v. Walsh, 5 Dill. (U. S.) 58; Com.
v. Shedd, 7 Cush. (Mass.) 514; Com. v.
Wallace, 16 Gray (Mass.) 221; People
v. Arnold, 46 Mich. 268. But see Reg.
v. Wright, 2 Cox C. C. 336.
An indictment failing to aver the
venue of the overt acts done in pur-
suance of the conspiracy is bad.
People v. Barrett, i Johns. (N. Y.) 66.
For other forms of indictments for con-
spiracy see as follows:
To steal title deeds. 4 Cox C. C. Ap-
pendix xviii.
To solicit tenants to break their con-
tracts with their landlords, and to re-
fuse to pay their rent. Reg. v. Parnell,
14 Cox C. C. 508.
Wrongfully to charge the inhabitants
of a parish with the maintenance of a
child, i Cox C. C. Appendix xi.
To extort a deed by arresting and
imprisoning the prosecutor under color
and pretense of legal process. State v.
Shooter, 8 Rich. L. (S. Car.) 72.
By the employees of a dyer to use the
vats and dyes of their employer for their
own profit, in violation of their duty.
Reg. -v. Button, 3 Cox C. C. 229.
To convey, possess and settle public
lands under a pretended title not de-
rived from the state. Com. v. Franklin,
4 Dall. (Pa.) 255.
To sell lottery tickets. Com. v. Gil-
lespie, 7 S. & R. (Pa.) 469; Com. v.
Sylvester, 6 Pa. L. J. 283.
To enter upon lands and hold same.
Wilson v. Com., 96 Pa. St. 56.
To prevent use of English language
in a German church. Com. v. Eberle,
3 S. & R. (Pa.) 9.
To remove goods in contemplation of
bankruptcy. Heymann v. Reg., 12
Cox C. C. 383.
To abduct a young girl of property
and cause her to be married without the
consent or knowledge of her parents
in order to secure her estate. Wake-
field's Case, 2 Lew. C. C. i.
To marry a young man of fortune to
a woman of inferior character and con-
dition. Rex v. Thorp, 5 Mod. 218;
Rex v. Serjeant, R. & M. 352, 21 E. C.
L. 453-
1. For the formal parts of an indict-
ment, information or criminal com-
plaint in a particular jurisdiction
consult the titles INDICTMENTS; IN-
FORMATIONS; CRIMINAL COMPLAINTS.
Averment of Overt Acts. In several
states it is made a misdemeanor for
two or more persons to conspire falsely
and maliciously to indict another for
any offense, or to procure another to
be charged or arrested for any such
offense, or falsely to move or maintain
any suit; but no such agreement shall
be deemed a conspiracy unless some
act besides such agreement be done to
effect the object thereof, by one or more
of the parties thereto; and in the follow-
ing states the indictment must aver
some overt act done in pursuance of
the conspiracy.
California. Pen. Code (1897),
182, 184.
Minnesota. Stat. (1894), 3780,
378i.
Montana. Pen. Code (1895), js 320-
325.
Neio Jersey. Gen. Stat. (1895), p.
1093, 236.
New York. Pen. Code, 171; Birds.
Rev. Stat. (1896), p. 588, 4.
North Dakota. Rev. Codes (1895),
7037, 7040, 8194.
South Dakota. Dak. Comp. Laws
(1887), g 6425, 6427, 7383.
Tennessee. Code (1896), 6695.
Utah. Rev. Stat. (1898), 4158.
In other states, however, an aver-
ment of overt acts is not necessary.
Colorado. Mills' Anno. Stat. (1891),
1294.
142
Volume 5.
6121.
CONSPIRACY.
6121.
a. Of Adultery.
Form No. 6121.'
Commonwealth of Massachusetts,
County of Suffolk.
ss.
At the Superior Court begun
and holden at Boston within
and for the county of Suffolk, on the first Monday of January, in the
year of our Lord one thousand eight hundred and ninety-eight*
The jurors for the commonwealth of Massachusetts upon their oath
present:
That Michael ' Brien, William Clark, and Jane Harper, all of said
Boston, on the seventh day of January, in the year of our Lord
Idaho. Rev. Stat. (1887), 6540.
Illinois. Starr & C. Anno. Stat.
(1896), c. 38, 45-
Mississippi. Anno. Code (1892),
1006.
Nebraska. Comp. Stat. (1897), 6842.
New Mexico. Comp. Laws, 845.
Wyoming. Rev. Stat. (1887), 960.
And where the statute requires an
overt act it does not exact a full exe-
cution of the conspiracy to render it
indictable. Thus, where in an indict-
ment for conspiracy to slander a per-
son by accusing him of theft, the overt
acts laid were in substance that the
defendants "reported to and among
his neighbors that the said Dringer
was a thief; and had dishonestly ob-
tained certain brass, copper, etc., from,
etc.; that they made false affidavits
that said Dringer was a dishonest man,
and had obtained fraudulently from
the Erie company a large amount of
copper, brass, etc., and other things
fraudulently and in such a manner as
to make it stealing by said Dringer
from said company," it was con-
tended that the allegation was of
nothing more than a conspiracy to de-
fame a person by the propagation of
slander, and that the wrong was a
civil injury and not a criminal offense.
The court held otherwise, and that it
was only necessary to allege that some
act was done to effect the object of the
conspiracy. State v. Hickling, 41 N. J.
L. 208, 32 Am. Rep. 198.
The gist of the offense is the con-
spiracy, and acts done in pursuance of
it being only matter of aggravation,
any informality or uncertainty in al-
leging such acts will not vitiate the
indictment. Com. v. Knowlton, 2
Mass. 530; Rex v. Rispal, 3 Burr. 1320.
Innocence of Prosecutor. If the con-
spiracy be laid falsely, it is not neces-
sary to aver the innocence of the
prosecutor. Reg. v. Best, i Salk. 174,
Holt 151, 2 Ld. Raym. 1167, Reg. v.
Hollingberry, 6 D. & R. 345, 16 E. C.
L. 262; State v. Locklin, Si Me. 251;
Johnson v. State, 26 N. J. L.3I3. And
an indictment for a conspiracy to in-
dict for a capital offense is good
although the word falsely is not
added to the first charge of the con-
spiracy, nor the particular crime there
specified, and although it is not alleged
that the person charged was acquitted.
Rex v. Spragg, 2 Burr. 993.
For other forms of indictments for con-
spiracy falsely to charge one with a
criminal offense see as follows.
Arson. People v. Dyer, 79 Mich. 480.
Corruption of Public Officer. Rex v.
Fowke, 20 How. St. Tr. 1185; Rex v.
Fowle, 20 How. St. Tr. 1077.
Forgery. 4 Wentw. PI. 86.
Keeping Bawdy-house. 2 Cox C. C.
Appendix xxv.
Keeping Gaming-house. Reg. v. Hol-
lingberry, 6 D. & R. 345, 16 E. C. L. 262.
Poisoning Horse. 4 Wentw. PI. 98.
Receiving Stolen Goods. Davis' Prec.
100.
Sodomy. Rex v. Kinnersley, I Stra.
193-
1. This form is substantially the sec-
ond count of the indictment in Com. v.
O'Brien, 12 Cush. (Mass.) 85, in which
case the defendants having been con-
victed, moved in arrest of judgment
for the reasons that the count was bad
in that it set forth an executed con-
spiracy to commit a felony and the
misdemeanor was merged in the felony,
also because it was double, vague, un-
certain and contradictory, and did not
set forth the offense with sufficient cer-
tainty and precision; but the motion
was overruled. See also as to merger
Johnson v. State, 26 N. J. L. 313.
Sufficient Indictment. Where an in-
dictment charged that a man and a
woman falsely and maliciously con-
spired " to charge and accuse " one F.
143
Volume 5.
6121. CONSPIRACY. 6121.
eighteen hundred and ninety-seven, at Boston, aforesaid, being evil-
disposed persons, devising and intending unjustly, fraudulently and
maliciously to deprive the said Samuel Bigelow of his good name
and character, and to subject him, without any just cause, to the
punishment prescribed by law for the crime of fornication and
adultery, and to extort from him, the said Bigelow,'*- money; to wit,
the sum of one thousand dollars, did falsely, unlawfully, wickedly and
maliciously, combine, conspire, confederate, and agree together, to
entrap, seduce, and insnare, and falsely to charge and accuse him,
the said Bigelow, of the crime of adultery, and thereby, by the means
aforesaid, 2 to extort from him, the said Bigelow, money, to wit, one
thousand dollars, and in pursuance of said agreement, conspiracy,
combination, and confederacy, she, the said Jane Harper, did invite,
entice, allure, and attempt to seduce the said Bigelow to visit her at
the house of said O'Brien and Clark, being a house in the rear of the
house numbered fifteen in Bedford street in said Boston, on said
seventh day of January, in the evening of that day, and in further
pursuance of said unlawful and fraudulent conspiracy, combination,
and confederacy, they, the said Michael O'Brien and William Clark,
at Boston aforesaid, on the fifteenth day of January, in the year of
our Lord eighteen hundred and ninety-seven, and on divers other
days, did maliciously threaten to accuse him, the sa\& Bigelow, of the
crime of fornication and adultery with the said Jane Harper, he, the
said Bigelow, then and there being a married man, and having a
lawful wife alive, to wit, one Mary Ann Bigelow, with intent then
and there unjustly, fraudulently, and unlawfully to obtain and extort
from the said Bigelow, by the means aforesaid, and thereby, his
money and property, to wit, the sum of one thousand dollars, for com-
pounding and settling for the said pretended crime of adultery; and
in further pursuance of said unlawful and fraudulent conspiracy,
combination, and confederacy, they, the said O'Brien and Clark, on
that he had committed the crime of Rockingham, in the state aforesaid, felo-
adultery with the woman "with intent niously to ravish and carnally know,
thereby then and there unjustly and by force and against her will, with in-
unlawfully to obtain and acquire to tent unjustly to obtain and acquire to
them" divers sums of money of the them, the said Albert Hadley, Abbie
said F., "for compounding the said Hadley and George T. Wentworth, of
pretended adultery so falsely and mali- and from him, the said Bernhard Baer,
ciously charged on him as aforesaid," divers sums of money for compounding
it was held that the indictment charged the said pretended felonious assault
an offense with sufficient certainty, so falsely, wickedly and maliciously
Com. v. Andrews, 132 Mass. 263. charged on him as aforesaid, to the
Insufficient Indictment. Where the great damage of him the said Bernhard
proof was that the defendants conspired Baer" the variance was held to be
to charge Baer with having seduced fatal to a conviction under the indict-
and committed adultery with one Abbie ment. State v. Hadley, 54 N. H. 224.
Hadley, and the indictment charged 1. A charge of a conspiracy to extort,
that the defendants " did conspire, com- money without saying from whom is
bine, confederate and agree together too general and cannot be sustained,
to charge and accuse one Bernhard Com. v. Andrews, 132 Mass. 263.
Baer that he had then lately before 2. It is not necessary to set out the
made a felonious assault upon the said means in the charge of conspiracy.
Abbie Hadley, with intent the said Abbie Com. v. O'Brien, 12 Cush. (Mass.) 84.
Hadley, at Newmarket, in the county of
144 Volume 5.
6122. CONSPIRACY. 6122.
the day last aforesaid, at Boston aforesaid, did unjustly and mali-
ciously threaten to injure the name and reputation of the ssi\d.Btgelow t
and to begin a prosecution against said Bigelow for the pretended
crime of adultery and fornication with said Jane Harper, with intent
by such unjust and malicious threats, to extort money from the said
Bigelow, against the law, peace and dignity of this commonwealth.
Daniel Webster, District Attorney.
b. Of Attempt at Murder.
Form No. 6122.
(Precedent in State v. Locklin, 81 Me. 251.)'
[State of Maine.
Franklin, ss. At the Supreme Judicial Court begun and held at
Farmington within and for said county of Franklin, on the second
Tuesday of November in the year of our Lord eighteen hundred and
eighty -eight.] z
The jurors for the said state, upon their oath present,* that Abner
Searles and Elijah W. Locklin, both of Rangely in said county of
Franklin, at Rangely in said county of Franklin, on the fourteenth
day of August, in the year of our Lord one thousand eight hun-
dred and eighty-seven, did unlawfully conspire, confederate and
agree together with intent falsely, fraudulently and maliciously
to accuse one J. Wesley Dunham, that he, the said J. Wesley Dunham,
then and there attempted to kill and murder the said Elijah
W. Locklin by then and there attempting to administer a deadly
poison to the said Elijah W. Locklin, with intent then and there
falsely, fraudulently and maliciously to cause the said J. Wesley Dun-
ham to be prosecuted for attempt to murder and kill, of which crime
the said J. Wesley Dunham was then and there innocent, 3 against the
peace of the state, and contrary to the form of the statute in such
case made and provided.
And the jurors aforesaid upon their oath aforesaid do further
present, that Abner Searles and Elijah W. Locklin, both of Rangely, in
said county of Franklin, at said Rangely, on the fourteenth day of
August in the year before written, did unlawfully and maliciously
conspire, combine, confederate and agree together falsely to charge
and accuse one J. Wesley Dunham that he the said J. Wesley Dunham,
did maliciously and feloniously incite, move, procure, aid, counsel,
hire and command the said Abner Searles to attempt to kill and
murder the said Elijah W. Locklin by depositing in the food
1. This indictment is sufficient under been added to render the form com-
Me. Rev. Stat. (1883), c. 126, 17. See plete.
also similar statutes as follows: 3. It was held in this case not to be
Indiana. Horner's Stat. (.1896), necessary to aver that the defendants
2140. knew or had reasonable cause for be-
lo-dua. Code (1897), 5058. lievingthat the party conspired against
2. The words enclosed by [ ] will not was innocent,
be found in the reported case, but have
5 E. of F. P. 10. 145 Volume 5.
6123. CONSPIRACY. 6123.
i
of him, the said Elijah W. Locklin, for said Locklin to eat, a cer-
tain deadly poison, to wit: one ounce of paris green, with intent
then and there falsely, fraudulently and maliciously to cause the said
J. Wesley Dunham to be prosecuted for said crime, of which crime
the said J. Wesley Dunham was then and there innocent, against the
peace of the state, and contrary to the form of the statute in such
case made and provided.
And the jurors aforesaid, upon their oath aforesaid, do further
present, that Abner Searles and Elijah W. Locklin, both of Rangely in
the county of Franklin, at Rangely in the county of Franklin, on the
fourteenth day of August, in the year of our Lord one thousand eight
hundred and eighty-seven, did unlawfully and maliciously conspire,
combine, confederate, and agree together falsely to charge and
accuse one J. Wesley Dunham with having feloniously and of his
malice aforethought attempted to kill and murder the said Elijah W.
Locklin, with intent then and there falsely, fraudulently and mali-
ciously to cause the said J. Wesley Dunham to be prosecuted for the
offense aforesaid of which crime the said J. Wesley Dunham was then
and there innocent.
And the jurors aforesaid, upon their oath aforesaid, do further
present, that in pursuance of the said unlawful and malicious combi-
nation and conspiracy, the said Elijah W. Locklin did afterwards, to
wit, on the twenty-second day of August, in the year aforesaid, accuse
the said J. Wesley Dunham of the crime aforesaid, by procuring and
causing complaint to be made before a trial justice in and for said
county, upon which complaint made then and there by said Locklin,
warrant was issued and the said J. Wesley Dunham was arrested on
said warrant, as then and there issued, and taken before said justice
to answer to said complaint. And the jurors do further present,
that at a hearing on said complaint issued and procured as afore-
said, held on the twenty-third day of said August, and in further
pursuance of said unlawful and malicious combination and conspiracy,
said Abner Searles and Elijah W. Locklin did state and testify under
oath that said Dunham did commit the crime as aforesaid, against
the peace of the state, and contrary to the form of the statute in such
case made and provided.
\Andrew Johnson, Foreman.
F, E. Timberlake, County Attorney.] 1
e. Of Being the Father of a Bastard. 5
Form No. 6123.
(Precedent in Johnson v. State, 26 N. J. L. 3I4-) 3
Bergen Oyer and Terminer and General Jail Delivery,
December Term, A. D. i85^.
Bergen county, to wit: The grand inquest of the State of New
Jersey in and for the body of the county of Bergen, upon their oaths
1. The words enclosed by [ ] will not 2. For an indictment for a similar
be found in the reported case, but have conspiracy at common law see Reg. v.
been added to render the form com- Best, 2 Ld. Raym. 1167, i Salk. 174.
plete. 3. The indictment contained two
146 Volume 5.
6123. CONSPIRACY. 6123.
present, that Susan Ann Smith, Albert Smith, 'Maria Smith, Joel M.
Johnson, and Richard Van Winkle, late of the township of Franklin, in
the said county of Bergen, wickedly devising and intending one Will-
iam W. Packer, not only of his credit and good name unjustly to
deprive, but also to obtain and acquire to themselves of and from the
said W. W. P. divers sums of money, and large amounts of property
and other valuable things, on theyf/M day of October, in the year one
thousand eight hundred and fifty-four, with force and arms, at the
township aforesaid, and within the jurisdiction of this court, did
amongst themselves unlawfully conspire, combine, confederate, and
agree to extort, obtain and procure, of and from the said W. W. P.
large sums of money, and a large amount of property, and security for
a large sum of money, for their own use; and in order to extort, obtain,
and procure the same, did corruptly and unlawfully conspire and agree
together falsely to charge and cause to have falsely charged, the said
W. W. P. before one of the justices of the peace of the said county,
on and by the oath of the said Susan Ann Smith, with having got the
said 6*. A. S., she then being a single woman, with child of a bastard,
and to procure the issuing of a warrant thereupon by such justice of
the peace for the arrest of the said W. W. P., and when the said W.
W. P. should be so arrested and under duress of imprisonment, to
extort, obtain and procure from the said W. W. P. said money, prop-
erty, and security for money for their use, by offering to receive the
same for the suppression and compromise of the said charge, and for
the liberation of the said W. W. P. from arrest and imprisonment
under such warrant. And the jurors aforesaid, upon their oath afore-
said say, that the said S. A. S.,A. S., J. M. /., M. S. and R. V. W., the
defendants, in furtherance of their conspiracy, afterwards, to wit, on
the day and year aforesaid, at the township and in the county afore-
said, did, before one James V. Jeralemon, then being one of the justices
of the peace in and for the said county, falsely charge, and cause and
counts, both of which were sustained, secure and indemnify the township for
It was objected to the first count (given the support of such bastard child, when
in the text) that it contained no charge born, and to extort and obtain money
of conspiracy, because the averments and securities for the payment of money
show a felony, i. e., perjury and subor- of the said prosecutor, by offering to
nation of perjury, in which the offense receive the same as the consideration
of conspiracy is merged. The court held and price of suppressing such charge,
that there was no merger, the making and liberating him from arrest and in-
the false accusation, etc., being the demnifying him from the pretended
means of accomplishing the conspiracy liability, and further, that they did
and not the same act. cause the prosecutor to be so charged
In the second count it was averred and arrested, and that they obtained
that the defendants, in order to extort from him a bond and mortgage for the
from the prosecutor money and securi- payment of one thousand dollars. It
ties, did corruptly, unlawfully and was contended that this count charged
fraudulently conspire and agree to no crime, but merely an agreement to
charge, and cause to be charged, the procure a settlement or compounding
said W. W. P., on the oath of S. A. S., of a charge of bastardy, not alleging it
with having begotten her with child to be false, but the court held that the
of a bastard, which would, when born, count clearly showed a combination to
be chargeable to the township, and to make a false charge for corrupt and un-
procure his arrest, and thereby to put lawful purposes, as fully as if it were
him in constraint and fear of public in- averred that the defendants conspired
famy and disgrace, and of liability to to make a false charge.
147 Volume 5.
6 1 24. CONSPIRACY. 6 1 24.
procure the said S. A. S. upon and by her oath, falsely to charge, that
the said W. W. P. was the father of the bastard of which she then
alleged herself to be with child, and which she then alleged was to be
born a bastard, and chargeable upon the township QiFra?iklin, in the
said county, and that upon the said charge the said defendants pro-
cured a warrant to be issued by the said J. V. J., justice of the peace
as aforesaid, by virtue of which said warrant the said defendants after-
wards arrested, and caused and procured to be arrested, the body of
the said W. W. P., and him held in custody, and while so under arrest
and in custody, then and there did unlawfully, wilfully and deceitfully
endeavor to obtain, extort, and procure of and from the said W. W. P.
a large sum of money, security for a large sum of money, and property
and things of great value, as and for a consideration or recompense to
them for compromising and suppressing said charge, giving up the
further prosecution thereof, and releasing the said W. W. P., and then
and there the said defendants did, unlawfully, wilfully and fraudulently
obtain, extort, and procure from the said W. W. P., and cause him to
make, execute and deliver a bond or obligation, under the hand and
seal of the said W. IV. P., bearing date the fifth day of October in the
year last aforesaid, to the said A. S., in the penal sum of two thousand
dollars, upon condition that the said W. W. P. should pay to the said
A. S. on the first day of May next ensuing the date thereof, the sum
of one thousand &o\\a.rs\ also a certain mortgage dated the day and year
last aforesaid, executed and given by the said W. W. P. on lands of
him, the said W. W. P., situate in the township of Franklin aforesaid,
to the said A. S., to secure the payment of the said bond, which bond
and mortgage were given as the consideration or price for suppress-
ing and compromising said charge and releasing said W. W. P. from
arrest; that the said bond and mortgage were taken and received by
the said defendants from the said W. W. P. for their use, to the great
perversion and obstruction of justice and the due administration of
the laws, to the evil example of all others in like cases offending,
contrary to the form of the statute in such case made and provided,
and against the peace of this state, the government and dignity of the
same.
d. Of Larceny. 1
Form No. 6124.
(Precedent in Jones v. Com., 31 Gratt. (Va.) 837.)
\City of Manchester, to wit. )
In the Hustings Court of the said City. \
The jurors of the commonwealth of Virginia in and for the body of
the city of Manchester, and now attending the said court, upon their
1. In State v. Cawood, 2 Stew. (Ala.) and Taylor Brown " wickedly and
360, the indictment was sustained as maliciously devising and intending
being in conformity to the precedent in unjustly to vex, oppress John Self, and
3 Chit. Cr. L. 1175, which was held to deprive him of his good name, fame,
good in 3 Burr. 993. Omitting the credit and reputation, etc., on, etc., at,
formal parts, the indictment charged etc., wickedly and unlawfully among
that Thomas Cawood, Franklin Brown themselves, did combine, conspire, con-
148 Volume 5.
6125.
CONSPIRACY.
6125.
oath present, that Junius E. Jones and Royall Haxall, late of said
city, on the eighteenth day of March in the year one thousand eight
hundred and seventy-eight, and in the said city of Manchester and
within the jurisdiction of the Hustings Court of said city,] 1 unlaw-
fully devising and intending one Sally Cousins to charge and convict
of the larceny of a certain lot of railroad iron, the property of The
Richmond and Danville Railroad Company, and to subject (and did
subject) the said Sally Cousins to a criminal prosecution (wherein the
said Sally Cousins was duly acquitted), did unlawfully conspire, com-
bine, confederate and agree among themselves, and that in pur-
suance of and according to the conspiracy, combination, confederacy
and agreement aforesaid, so as aforesaid had, they, the said Junius
E. Jones and Royall Haxall, did falsely accuse the said Sally Cousins
of the larceny of certain railroad iron as aforesaid, and did undertake
to make and fabricate certain signs and evidences by which to con-
vict the said Sally Cousins of the larceny aforesaid, and did then and
there introduce said false evidence before his honor, the mayor of
the city of Manchester, upon the trial of Sally Cousins for the larceny
as aforesaid, on a warrant sworn out by said J. E. Jones in further-
ance and pursuance of the conspiracy, etc., aforesaid, against the
peace and dignity of the commonwealth of Virginia.
2. To Cheat or Defraud. 2
federate and agree, falsely and without
any reasonable or probable cause what-
soever, to charge and accuse the said
John Self with having stolen, taken
and carried away, feloniously, a cer-
tain bank note, for the payment of one
dollar, of the value of one dollar, on
the Augusta Insurance Company"; and
" that the said Franklin Brown, on, etc.,
at, etc., in pursuance of and according to
said conspiracy, combination, confeder-
acy and agreement, between them so
had as aforesaid, did say to the said
John Self, that he, the said /<?<& Self,
was a man of credit, and that he, the
said John Self, had better make it up
than have his credit blasted. And that
the said Franklin Brown, in [further]
pursuance of said combination, con-
spiracy, [confederation and agreement
so had as aforesaid,] did on, etc., at,
etc., unlawfully and wickedly exact,
take and receive of and from the said
John Self, a sorrel mare, of the goods
and chattels of the said/^ Self, of
the value of fifty dollars, for and as a
compensation for the pretended offense
above mentioned; whereas, in truth
and in fact, the said Jo An Self never
was guilty of any such offense, etc., to
the great damage [of the said John
Self] and against the peace and dignity
[of the state of Alabama']."
See also Elkin v. People, 28 N. Y.
177; States. Hickling, 41 N. J. L. 208,
32 Am. Rep. 198.
1. The words enclosed by [ ] will not
be found in the reported case, but have
been added to render the form com-
plete.
2. For statutes delaring it to be a mis-
demeanor for two or more persons to
conspire to cheat or defraud any person
of property by any means which are in
themselves criminal, or by any means
which, if executed, would amount to a
cheat or to obtaining money or property
by false pretenses, see as follows:
Arkansas. Sand. & H. Dig. (1894),
1507.
California. Pen. Code (1897), 182.
Florida. Rev. Stat. (1892), 2593.
Idaho. Rev. Stat. (1887), 6540.
Illinois. Starr & C. Anno. Stat.
(1896), c. 38, 38.
Minnesota. Stat. (1894), 6423.
Mississippi. Anno. Code (1892),
1006.
Missouri. Rev. Stat. (1889), 3780.
Montana. Pen. Code (1895), 320.
New Jersey. Gen. Stat. (1895), p.
1093, 236.
New York. Ten. Code, 168 (Birds.
Rev. Stat. (1896), p. 587, i).
North Dakota. Rev. Codes (1895),
7037.
149
Volume 5.
6125.
CONSPIRACY.
6125.
Pennsylvania. Bright. Pur. Dig.
(1894), p. 442, 212.
South Dakota. Dak. Comp. Laws
(1887), 6425.
Tennessee, Code (1896), 6693.
Utah. Rev. Stat. (1898), 4156.
For the formal parts of the indictment,
information or criminal complaint in a
particular jurisdiction consult the titles
INDICTMENTS; INFORMATIONS; CRIMINAL
COMPLAINTS.
Allegation of Means. It is well set-
tled in England that a general charge
of a conspiracy to cheat and defraud
without setting out the contemplated
means is sufficient. Rex v. Gill, 2 B. &
Aid. 204; Reg. v. Kenrick, 5 Q. B. 49,
48 E. C. L. 48; Reg. v. Gompertz, 9 Q.
B. 824, 58 E. C. L. 245, 2 Cox C. C.
145; Reg. v. Parker, 3 Q. B. 292, 43 E.
C. L. 741, 2 G. & D. 709; Sydserff v.
Reg., II Q. B. 245, 63 E. C. L. 245;
Reg. v. King, 7 Q. B. 782, 53 E. C. L.
782; Latham v. 'Reg., 5 B. & S. 635,
117 E. C. L. 635, 9 Cox C. C. 516; Rex
v. Eccles., i Leach C. C. 274.
Thus an indictment charging that the
defendants " unlawfully, fraudulently
and deceitfully did conspire, combine,
confederate and agree together to cheat
and defraud" the prosecutor "of his
goods and chattels" is not too general,
and is good. Sydserff v. Reg., if Q.
B. 245, 63 E. C. L. 245. And an in-
dictment charging that the defendants
conspired by divers false pretenses and
subtle means and devices " to obtain
from A. divers large sums of money of
the moneys of the said A., and to cheat
and defraud him thereof," without fur-
ther stating the means of the alleged
conspiracy, was held sufficient. Reg.
v. Kenrick, 5 Q. B. 49, 48 E. C. L. 48.
For similar forms held sufficient see
Rex v. Hamilton, 7 C. & P. 448, 32 E.
C. L. 579; Reg. v. Bullock, Dears. C. C.
653; Reg. v. Hudson, 8 Cox C. C. 305,
and the precedents in 4 Cox C. C. Ap-
pendix xviii; 6 Cox C. C. Appendix Ixiii,
Ixv, clx.
The American decisions as to the
sufficiency of the form established in
Rex v. Gill, 2 B. & Aid. 204, have not
been uniform. It is now settled in the
majority of states, however, that, in the
absence of statutes affecting the case,
a general allegation of a conspiracy to
cheat 'and defraud by means of false
pretenses and indirect means is insuffi-
cient, and the indictment must set forth
the particular means by which the ob-
ject of the conspiracy was to be effected,
since the words " to cheat and defraud '
do not necessarily in themselves import
an act criminal or unlawful. It is so
held in the following states:
Iowa. State v. Jones, 13 Iowa 273.
Kentucky. Com. v. Ward, 92 Ky.
158.
Maine. State v. Roberts, 34 Me. 320.
Massachusetts. Com. v. Prius, 9
Gray (Mass.) 127; Com. v. Wallace, 16
Gray (Mass.) 221; Com. v. Eastman, I
Cush. (Mass.) 189, 48 Am. Dec. 596;
Com. v. Shedd, 7 Cush. (Mass.) 515;
Com. v. Meserve, 154 Mass. 64.
New Hampshire. State v. Parker,
43 N. H. 83.
New Jersey. State v. Norton, 23 N.
J. L. 33-
New York. People v. Eckford, 7
Cow. (N. Y.) 535; Lambert v. People, 9
Cow. (N. Y.) 578; March v. People, 7
Barb. (N. .Y.)3Qi; People v. Brady, 56
N. Y. 182. Compare Scholtz's Case, 5
C. H. Rec. (N. Y.) 112.
Vermont. State v. Keach,4oVt. 113.
But the contrary view has been held
in the following states:
Illinois. Thomas v. People, 113 111.
531, 5 Am. Crim. Rep. 127.
Maryland. State v. Buchanan, 5
Har. & J. (Md.) 317.
Michigan. People v. Butler, (Mich.
1897) 69 N. W. Rep. 734; People v. Ar-
nold, 46 Mich. 268; People v. Winslow,
39 Mich. 505; People v. Clark, 10 Mich.
310; People v. Richards, i Mich. 216.
New Jersey. State v. Young, 37 N.
J. L. 184.
North Carolina. State v. Brady, 107
N. Car. 822.
Wisconsin. State v. Crowley, 41
Wis. 271.
It has been considered that the au-
thority of Rex v. Gill, 2 B. & Aid.
204, has been shaken in Pennsylvania,
notably by the case of Hartmann v.
Com., 5 Pa. St. 60; but Mr. Wharton
concludes that in view of the exceeding
liberality of pleading which was recog-
nized in Com. v. Eberle, 3 S. & R. (Pa.)
9; Com. v. McKisson, 8 S. & R. (Pa.)
420; Com. v. Gillespie, 7 S. & R.
(Pa.) 469; Collins v. Com., 3 S. & R.
(Pa.) 220; Clary v. Com., 4 Pa. St. 210;
Mifflin v. Com., 5 W. & S. (Pa.) 461,
the precedent given in Rex -v. Gill
must be treated as if of unimpaired
validity in Pennsylvania. Whart. Cr.
L., 2304; Whart. Prec. (2d ed.) 440.
In Com. v. Bracken, 14 Phila. (Pa.)
342, Briggs, J., said:
" Rex v. Gill is now as certainly
150
Volume 5.
6125.
CONSPIRACY.
6125.
settled as authority in this state as a
legal form for an unexecuted conspiracy
as it is in England. But it has never
been the law of this state as applicable
to an executed conspiracy, without the
addition of the overt acts by means of
which the confederacy was carried into
effect. Even where that form is relied
on in an unexecuted conspiracy, if it
does not state the confederation in a
manner sufficiently specific to enable
the defendants to comprehend its scope
they may, of right, demand a bill of par-
ticulars." See also Com. v. Goldsmith,
12 Phila. (Pa.) 632; Com. v. Wilson, 4
Crim. L. Mag. 249.
In order to give needed information
to the court and to the accused, where
there is merely a general charge of a
conspiracy to obtain property by false
pretenses, a specification of particulars
will be ordered by the court on motion.
Reg. v. Kenrick, 5 Q. B. 49, 48 E. C. L.
48; Rex v. Hamilton, 7 C. & P. 448, 32
E. C. L. 579; Reg. v. Brown, 8 Cox C.
C. 69; Reg. v. Rycroft, 6 Cox C. C. 76;
Com. v. Meserve, 154 Mass. 64; State
v. Brady, 107 N. Car. 822.
Allegation of Overt Acts. Under the
statutes of several states, the indict-
ment must charge the performance of
some overt act toward effecting the
object of the conspiracy. See list of
statutes cited supra, this note. But in
other cases it has been held not neces-
sary, in an indictment for conspiracy to
cheat or defraud, to allege overt acts
done in pursuance of the conspiracy.
See for example Com. v. Fuller, 132
Mass. 566; Com. v. Eastman, i Cush.
(Mass.) 189, 48 Am. Dec. 596; Com. v.
Shedd, 7 Cush. (Mass.) 514; Com. v.
Judd, 2 Mass. 329; Com. v. Ward. 2
Mass. 397; Collins v. Com., 3 S. & R.
(Pa.) 220; Com. v. McKisson, 8 S. & R.
(Pa.) 420, ii Am. Dec. 630; Clary v.
Com. 4 Pa. St. 210; Heine v. Com. ,91
Pa. St. 145; Com.z/. Hadley, 13 Pa. Co.
Ct. Rep. 188; Com. v. Wilson, 4 Crim.
L. Mag. 249.
In Com. v. Bracken, 14 Phila. (Pa.)
342, the Pennsylvania cases are re-
viewed and the doctrine of these cases
stated to be, that where the indict-
ment charges merely an unexecuted
conspiracy, as in Rex v. Gill, 2 B. &
Aid. 204, no overt act by which the con-
spiracy is to be executed by the con-
federates need be set out, and even if
the overt act be laid, it may be treated
as aggravation merely and surplusage.
But where the indictment lays the con-
spiracy as having been executed the
overt acts must be set forth so speci-
fically as to enable an innocent defend-
ant to comprehend exactly the nature
of the offense the commonwealth calls
him to answer, and which will protect
him against a second prosecution for
the same offense. And when the overt
act is set out it must be averred to be
within the object of the conspiracy as
stated in the indictment. Thus, where
a count in an indictment charged the
defendants with a conspiracy to defraud
such persons as might be desirous of
purchasing a certain horse, by means
of false pretenses as to the said horse,
and charged that they, in pursuance of
said conspiracy, did obtain money from
a certain person, without alleging that
he was such a person as might be de-
sirous, etc., the count was held insuffi-
cient. Reg. v. Henry, i Cox C. C. 101.
Accomplishment of Purpose. The
offense charged consists in the con-
spiracy to defraud by false pretenses,
and whether the object of the con-
spiracy was successfully accomplished
or not is immaterial. But if the con-
spirators carry out or attempt to carry
out the object of the conspiracy, that
fact may be alleged in aggravation of
the offense. State v. Mayberry, 48 Me.
218; Com. v. Tibbetts, 2 Mass. 536.
Person to be Defrauded. In Reg. v.
Peck, 9 Ad. & El. 686, 36 E. C. L. 240,
it was held that it was no objection to
the count in the indictment that it did
not name the parties to be defrauded.
See also Reg. v. Whitehouse, 6 Cox C. C.
38. But in Reg. v. King, 7 Q. B. 782,
53 E. C. L. 782, an indictment charging
that defendants conspired to cheat and
defraud "certain liege subjects of the
Queen being tradesmen," etc., was held
bad, for the words alleging conspiracy
showed a design to injure, not trades-
men indefinitely, but individuals, and
therefore either the persons should
have been named or an excuse stated
for not naming them. Similarly a
charge of conspiracy to defraud "the
creditors of W. E." was held too gen-
eral. Rex v. Fowle, 4 C. & P. 592, 19
E. C. L. 540.
Description of Goods. An indictment
for a conspiracy " to defraud J. W.
of divers goods, and in pursuance of
that conspiracy defrauding him of
divers goods, to wit, of the value of one
hundred pounds," cannot be quashed
for not specifying the particular goods
of which the prosecutor had been de-
151
Volume 5.
6125.
CONSPIRACY.
6125.
a. A Bank.
Form No. 6125.
(Precedent in State v. Buchanan, 5 Har. & J. (Md.) 3I8.) 1
State of Maryland, ) The jurors for the State of Maryland for
City of Baltimore, to wit : j the body of the City of Baltimore, on their
oath present, that by an Act of Congress of the United States, passed
frauded. The gist of the offense is the
conspiracy. Rex v. , I Chit.
Rep. 698, 18 E. C. L. 205; Com. v. Gold-
smith, 12 Phila. (Pa.) 632; Com. v. Wil-
son, 4 Cr. L. Mag. 249. But in Com.
v. Galbraith,6 Phila. (Pa.) 281 (decided
in 1867), it was held that an allegation of
a conspiracy to cheat the prosecutor out
of " $77,000 in cash," without specify-
ing the kind of dollars meant, was
insufficient. And an indictment for
conspiracy to cheat and defraud a party
of the fruits and advantages of a ver-
dict obtained is bad for generality.
Reg. v. Richardson, i M. & Rob. 402.
And an indictment for a conspiracy
to obtain goods by false pretenses is
bad, unless it state to whom the goods
belonged. Reg. v. Parker, 3 Q. B. 292,
43 E. C. L. 741, 2 G. & D. 709.
For other forms of indictments for con-
spiracies to cheat and defraud see as
follows:
By maker of two promissory notes
and two other persons fraudulently to
obtain said notes from the holder, i
Cox C. C. Appendix xiii.
To induce person of unsound mind
to sign a paper authorizing defendant
to take possession of his goods. I Cox
C. C. Appendix xxvii.
By inducing person to advance
money on forged securities. 2 Cox C.
C. Appendix vi.
To obtain money by pretending to be
desirous of employing clerks and de-
manding security for their good be-
havior from such persons as should
offer themselves. 4 Cox C. C. Appen-
dix xiii.
By falsely and fraudulently altering
the terms of a lease. 4 Cox C. C.
Appendix xviii.
To obtain goods by false pretenses
without paying for same. 4 Cox C.
C. Appendix xxxv.
To defraud railway company by
traveling without a ticket. 4 Cox C.
C. Appendix xxxviii.
To cheat tradesmen generally of their
goods. 6 Cox C. C. Ixiii. ; Com. v.
Boyer, (Pa. 1823) 2 Wheel. Cr. Cas.
140.
. To obtain goods by false representa-
tions as to property and occupation. 6
Cox C. C. Appendix Ixiv. ; Com. v.
Warren, 6 Mass. 74.
To defraud intending emigrants of
their passage money by pretending to
have an interest in certain ships. 6
Cox C. C. Appendix Ixxxi.
To defraud and deprive one of her
leasehold and of the rents and profits
thereof. Reg. v. Whitehouse, 6 Cox
C. C. 38.
To cheat a vendor by procuring an
abatement of price by false representa-
tions. Reg. v. Carlisle, 6 Cox C. C.
366, 25 Eng. L. & Eq. 577.
To defraud railway company by
reason of false entries of stock in regis-
ters of stockholders. 7 Cox C. C. Ap-
pendix li.
By false representations to induce
the committee of the stock exchange to
grant a settling day and quotation for
a certain joint stock company, and for
a conspiracy to obtain a quotation to
induce persons, who should thereafter
buy and sell the shares of the company,
to believe that the company was duly
formed and constituted and had com-
plied with the rules of the stock ex-
change so as to entitle the company to
have their shares quoted in the official
list. Reg. v. Aspinall, 13 Cox C. C.
230, 563-
To defraud insurance company by
causing it to be believed that one of
the conspirators had been burned to
death. Musgrave v. State, 133 Ind.
297.
By fraudulently selling property at
a price greatly exceeding its value.
State v. Parker, 43 N. H. 83.
By inducing one to buy a bad note.
People v. Barrett, I Johns. (N. Y.)
66.
By inducing one to indorse a forged
note. Respublica v. Ross, 2 Yeates
(Pa.) i.
To obtain conveyance of real estate.
State v. Bradley, 48 Conn. 535.
1, It was contended in this case that
as the improper use, or embezzlement
of the funds of the bank, by either the
152
Volume 5.
6125. CONSPIRACY. 6125.
on the tenth day of April, in the year of our Lord one thousand
eight hundred and sixteen, at the City of Washington, entitled, "An
Act to incorporate the subscribers to the Bank of the United States,"
a bank was established and chartered as a corporation and body poli-
tic, by the name and style of "The President, Directors and Com-
pany, of the Bank of the United States," with authority, power and
capacity, among other things, to have, purchase, receive, possess,
enjoy and retain, to them and their successors, lands, rents, tene-
ments, hereditaments, goods, chattels and effects, of whatsoever
kind, nature and quality, to an amount not exceeding in the whole,
fifty-five millions of dollars, to deal and trade in bills of exchange,
gold and silver bullion, and to take at the rate of six per centum per
annum for or upon its loans or discounts, and to issue bills or notes
signed by the president, and countersigned by the principal cashier
or treasurer thereof, promising the payment of money to any person
or persons, his, her, or their order, or to bearer, and that under and
by virtue of the power and authority given to the said directors by
the said Act of Congress, an office of discount and deposit of the
said corporation was, at the time hereinafter mentioned, regularly
and duly established in pursuance of the power contained in the said
Act, at the City of Baltimore, in the State of Maryland aforesaid, and
that George Williams, late of the City of Baltimore, merchant, was at
the time hereinafter mentioned, and before and afterwards, one of
the directors of the said Bank of the United States at Philadelphia,
to wit, at the City of Baltimore aforesaid, and that James A. Buchanan,
late of the City of Baltimore, merchant, was at the time hereinafter
mentioned, and before and since, president of the said office of dis-
count and deposit of the said Bank of the United States in the City
of Baltimore, and that James W. M'Culloh, late of the City of Balti-
more, gentleman, was at the time hereinafter mentioned, and before
and afterwards, cashier of the said office of discount and deposit of
the said Bank of the United States in the City of Baltimore, to wit,
at the City of Baltimore aforesaid. And that the said George Will-
iams, so being one of the directors of the said Bank of the United
States, and the said James A. Buchanan, so being president of the said
office of discount and deposit of the said bank in the City of Balti-
more, and the said James W. M'Culloh, so being cashier of the said
office of discount and deposit of the said bank in the City of Balti-
more, being evil disposed and dishonest persons, and wickedly devis-
ing, contriving, and intending, falsely, unlawfully, fraudulently,
craftily and unjustly, and by indirect means, to cheat and impoverish
the said president, directors, and company, of the Bank of the United
States, and to defraud them of their moneys, funds, and promissory
president or cashier of the office, would Defrauding Shareholders of Bank. For
in law be only a breach of trust, a com- substance of an indictment for a con-
bination to effect the same purpose can- spiracy to defraud the shareholders of
not amount to an indictable offense, a bank by falsely representing the bank
But it was held that it was not neces- to be in a prosperous condition, so as to
sary that the act conspired to be done induce them to continue to hold shares
should, if effected by an individual, be therein and to purchase other shares,
such as would per se amount to an in- see Reg. v . Esdaile, 8 Cox C. C.6g; Reg.
dictable offense. v. Brown, 7 Cox C. C. 442.
153 Volume 5.
6125. CONSPIRACY. 6125.
notes for the payment of money, commonly called bank notes, and of
their honest and fair gains to be derived under and pursuant to the said
Act of Congress from the use of their said moneys, funds, and promis-
sory notes for the payment of money, commonly called bank notes,
on the eighth day of May, in the year of our Lord one thousand eight
hundred and nineteen, at the City of Baltimore aforesaid, with force and
arms, etc., did wickedly, falsely, fraudulently and unlawfully conspire,
combine, confederate and agree together, by wrongful and indirect
means, to cheat, defraud and impoverish the said president, directors
and company of the Bank of the United States, and by subtle, fraudu-
lent, and indirect means, and divers artful, unlawful and dishonest
devices and practices, to obtain and embezzle a large amount of money,
and promissory notes for the payment of money, commonly called
bank notes, to wit, of the amount and value of fifteen hundred thousand
dollars, current money of the United States, the same being then and
there the property, and part of the proper funds of the said president,
directors and company, of the Bank of the United States, from and
out of the said office of discount and deposit of the said bank in the
City of Baltimore, without the knowledge, privity or consent of the
said president, directors and company of the Bank of the United
States, and also without the privity, consent or knowledge of the
directors of the said office of discount and deposit of the said bank
in the City of Baltimore, for the purpose of having and enjoying the
use thereof for a long space of time, to wit, for the space of two
months, without paying any interest, discount or equivalent for the
use thereof, and without securing the repayment thereof to the said
corporation. And the more effectually and securely to perpetrate
and conceal the same, that the said James W. M'Culloh should, from
time to time, falsely and fraudulently state, allege and represent
to the said directors of the said office of discount and deposit in the
City of Baltimore, that such moneys and promissory notes, so agreed
to be obtained and embezzled as aforesaid, were loaned on good,
sufficient and ample security, in capital stock of the said bank, pledged
and deposited therefor; and also should from time to time make and
fabricate false statements and vouchers respecting the same, and
other property and funds of the said corporation, to be laid before
and exhibited to the said bank in the City of Baltimore, and that the
said George Williams, James A. Buchanan, and James W. M'Culloh,
being such officers of the said corporation as aforesaid, did then and
there, in pursuance of and according to the said unlawful, false, and
wicked conspiracy and confederacy, combination and agreement,
aforesaid, by indirect, subtle, wrongful, fraudulent and unlawful
means, and by divers artful and dishonest devices and practices, and
without the knowledge, privity or consent of the said president,
directors and company of the Bank of the United States, and with-
out the privity, knowledge or consent of the directors of the said
office of discount and deposit of the said bank in the City of Balti-
more, obtain and embezzle a large amount of moneys, and of promis-
sory notes for the payment of money, commonly called bank notes,
the same being the property and part of the proper funds of the said
corporation, from and out of their said office of discount and deposit
154 Volume 5.
6125. CONSPIRACY. 6125.
in the City of Baltimore, to wit, to the amount and value of fifteen
hundred thousand dollars current money of the United States, for the
purpose of having and enjoying the use thereof, and did have and
enjoy the use thereof, for a long space of time, to wit, for the space
of two months, without paying any interest, discount or equivalent
therefor, and without securing the repayment of the said moneys,
and the said promissory notes for the payment of money, commonly
called bank notes; and did then and there falsely, craftily, deceitfully,
fraudulently, wrongfully and unlawfully, keep and convert the same
to their own use and benefit without the knowledge, privity or con-
sent of the said corporation, and without the knowledge, privity or
consent of the directors of the said office of discount and deposit in
the City of Baltimore, and did then and there, the more effectually to
perpetrate and conceal the said conspiracy, confederacy, fraud and
embezzlement, cause and procure false and fraudulent representa-
tions, allegations, statements and vouchers, to be made and fabri-
cated, and the same to be exhibited to and laid before the directors of
the said office of discount and deposit in the City of Baltimore, by
the said James W. M'Culloh, as cashier of the said office of discount
and deposit, and respecting the said moneys, and the said promissory
notes for the payment of money, so obtained and embezzled as afore-
said, in which said representations, allegations, statements and
vouchers, it was then and there falsely and fraudulently represented,
alleged and exhibited, that the said moneys, and promissory notes
for the payment of money, were loaned on good, sufficient, and ample
security in capital stock of the said bank, pledged and deposited
therefor, when in truth and in fact no capital stock of the said bank,
and no other security was pledged or deposited therefor, as the said
George Williams, James A. Buchanan, and James W. M'Culloh, then
and there well knew. And that the said false, wicked, unlawful,
and fraudulent conspiracy, confederacy and agreement, above men-
tioned, and the said false, wicked, unlawful, and fraudulent acts, done
in pursuance thereof above set forth, were then and there made, done
and perpetrated, by the said George Williams, James A. Buchanan, and
James W. M'Culloh, in abuse and violation of their duty, and the trust
reposed in them, and the oaths taken and lawfully sworn by them
respectively as such officers of the said corporation as aforesaid.
And that the said George Williams, James A. Buchanan, and James
W. M'Culloh, did then and there falsely, wickedly, fraudulently, wrong-
fully and unlawfully, impoverish, cheat and defraud, the said presi-
dent, directors and company of the Bank of the United States, to the
great damage of the said president, directors and company, to the
evil example of all others in like manner offending, and against
the peace, government and dignity of the State of Maryland, etc.
And the jurors aforesaid, on their oath aforesaid, do further present,
that the said George Williams, so being one of the directors of said
Bank of the United States at Philadelphia, to wit, at Baltimore, afore-
said, and the said James A. Buchanan, so being president of the said
office of discount and deposit of the said bank in the City of Balti-
more, and the said James W. M'Culloh, so being cashier of the said
office of discount and deposit of the said bank in the City of Balti-
155 Volume 5.
6126. CONSPIRACY. 6126.
more, being evil disposed and dishonest persons, and wickedly devis-
ing and contriving and intending, falsely, unlawfully, fraudulently,
craftily and unjustly, and by indirect means to cheat and impoverish
the said president, directors and company of the Bank of the United
States, and to defraud them of their moneys, funds and promissory
notes for the payment of money, commonly called bank notes, and of
their honest and fair gains to be derived under and pursuant to the
said Act of Congress, from the use of their said moneys, funds and
promissory notes for the payment of money, commonly called bank
notes, afterwards, to wit, on the eighth day of May, in the year of our
Lord one thousand eight hundred and nineteen, at the City of Baltimore
aforesaid, with force and arms, etc., did wickedly, falsely, fraudulent!)'
and unlawfully conspire, combine, confederate, and agree together
by wrongful and indirect means to cheat, defraud and impoverish the
said president, directors and company of the Bank of the United
States, and by subtle, fraudulent and indirect means, and divers art-
ful, unlawful and dishonest devices and practices, to obtain and em-
bezzle a large amount of money and promissory notes for the payment
of money, commonly called bank notes, to wit, of the amount and
value of fifteen hundred thousand 'dollars, current money of the United
States, the same being then and there the property and part of the
proper funds of the said president, directors and company of the
Bank of the United States, of and out of the said office of discount and
deposit of the said bank in the City of Baltimore, without the knowl-
edge, privity or consent of the said president, directors and company of
the Bank of the United States, and also without the privity, consent or
knowledge of the directors of the said office of discount and deposit
of said bank in the City of Baltimore, for the purpose of having and
enjoying the use thereof for a long space of time, to wit, for the space
of two months, without paying any interest, discount or equivalent for
the use thereof, and without securing the repayment thereof to the
said corporation; and that the said false, wicked, unlawful and fraudu-
lent conspiracy, confederacy and agreement above mentioned, were
then and there made, done and perpetrated by the said George Will-
iams, James A. Buchanan and fames W. M'Culloh in abuse and viola-
tion of their duty, and the trust reposed in them, and the oaths taken
and lawfully sworn by them respectively as such officers of the said
corporation as aforesaid, to the great damage of the said president,
directors and company, to the evil example of all others in like man-
ner offending, and against the peace, government and dignity of the
State of Maryland, etc.
Luther Martin, Attorney-General of Maryland,
and District Attorney of Baltimore City Court.
Form No. 6126.
(Precedent in State v. Norton, 23 N. J. L. 34.)'
[ Morris Oyer and Ter miner and General Jail Delivery.
December Term, A. D. i8^.] 2
The grand jurors of the state of New Jersey, in and for the body
1. This form is the first count of the 2. The words and figures enclosed
indictment, which was sustained. by [ ] will not be found in the reported
156 Volume 5.
6126. CONSPIRACY. 6126.
of the county of Morris, on their oaths 1 present, that Lambert Nor-
ton, William Thompson, Jacob M. King, Joseph Cutler, Samuel S. Doty,
and David Sanderson, all late of the township of Morris, in the county
of Morris, and state of New Jersey, on the 30th day of October, in the
year i839, at [Morn's aforesaid] 2 and within the jurisdiction of this
court, being persons of evil name and fame, and of dishonest con-
versation, and wickedly devising and intending, unjustly, unlawfully,
and by indirect means, to cheat and defraud "the President, Direc-
tors, and Company of the State Bank at Morris," and other persons
to the jurors aforesaid unknown, of their money, goods, chattels,
promissory notes, and effects, on [the 30th day of October, aforesaid,] 2
at \Morris aforesaid,] 2 within [the jurisdiction of this court,] 2 with
force and arms, etc., did fraudulently, maliciously, and unlawfully
conspire, combine, unite, confederate, and agree, between and
among themselves, by wrongful and indirect means, and divers acts,
unlawful and dishonest devices and practices, to cheat and defraud
the said " the President, Directors, and Company of the State Bank
at Morris," and divers other persons to the jurors aforesaid unknown,
of the money, goods, and chattels, promissory notes and effects, of
and belonging to the said "the President, Directors, and Company
of the State Bank at Morris," and divers other persons to the jurors
aforesaid unknown; and that in pursuance of the said conspiracy,
combination, and agreement, made between and among them as
aforesaid, the said Lambert Norton, William Thompson, Jacob M.
King, Joseph Cutler, Samuel S. Doty, and David Sanderson, afterwards,
to wit, on [the 30th day of October, in the year i839,~\ 2 at [Morn's
aforesaid] 2 and within [the jurisdiction of this court,] 2 fraudulently,
maliciously, and unlawfully, and without the said bank receiving any
consideration therefor, suffered, caused, and procured the name of
David Sanderson to be stricken off and erased from a certain promis-
sory note, made by one Egbert A. Thompson (by the name and
description oiE.A. Thompson) for the sum oiten thousand and 'fifty-seven
dollars and sixty-eight cents, dated Morristown, September 4, i8^.9, and
payable to the order of the said Egbert A. Thompson, at six months
after the date thereof, at the State Bank at Morris, for value received,
without defalcation or discount, and endorsed by said Egbert A. Thomp-
son and the said David Sanderson, with the intent to release the said
David Sanderson from his liability on said note, and for which said
promissory note, so as aforesaid endorsed by the said David San-
derson, the money had been advanced and paid by the said bank; and
which promissory note was then, to wit, on the day and year last
aforesaid, the property, promissory note, and effects of the said
"the President, Directors, and Company of the State Bank at
Morris," and divers other persons to the jurors aforesaid unknown.
case, but have been added to render not fatal, it appearing, moreover, from
the form complete. the caption that the jurors were duly
1. An objection that the indictment sworn.
was presented on the " oaths" instead 2. The words and figures enclosed
of the "oath" of the jurors was not by [] will not be found in the reported
sustained. The use of the plural, case, but have been added to render
while unusual and untechnical, was the form complete.
157 Volume 5.
6127. CONSPIRACY 6127.
By means whereof the said David Sanderson was released 1 from his
liability to the said " the President, Directors, and Company of the
State Bank at Morris," and divers other persons to the jurors afore-
said unknown, as endorser on the said promissory note; and thereby,
then and there, by the means last aforesaid, the said Lambert Nor-
ton, William Thompson, Jacob M. King, Joseph Cutler, Samuel S. Doty,
and David Sanderson, did greatly impoverish and injure the said "the
President, Directors, and Company of the State Bank at Morris,"
and divers other persons to the jurors aforesaid unknown, to the
great damage of the said " the President, Directors, and Company of
the State Bank at Morris," and divers other persons to the jurors
aforesaid unknown, against the peace of this state, the government
and dignity of the same. 2
b. A County. 3
Form No. 6127.
(Precedent in People v. Butler, (Mich. 1897) 69 N. W. Rep. 734. ) 4
[(Commencing as in form No. 6130, and contimdng down to *)] 5
that Daniel M. Butler and William H. Bird, late of said city of De-
troit, heretofore, to wit, on the first day of May, in A. D. i8&5, at the
said city of Detroit, in the county aforesaid, unlawfully, falsely,
deceitfully, and fraudulently did combine, conspire, confederate -and
agree together, by divers false pretenses, subtle means and devices,
to attain and acquire unto themselves, of and from the county of
Wayne, a sum of money, to wit, the sum of fifty dollars, of the value
1. It was objected that the indict- be executed should also show it. Mad-
ment disclosed such a state of facts as den v. State, 57 N. J. L. 324.
showed that Sanderson could not have An indictment for a conspiracy to
been released, but the court without cheat and defraud a city which alleges
passing upon this point held that the that the defendants conspired through
completion of the crime did not depend a contract to cheat and defraud the city
upon the success of its object, but the of its money by making certain false
offense was consummated by doing representations, which are set out, is
any overt act in pursuance of the con- fatally defective if it fails to state
spiracy. To the same effect see Mad- through or with whom the alleged fraud
den v. State, 57 N. J. L. 324. was to be committed, the city having
2. Another count for conspiracy con- no power to act except through its
eluded "contrary to the force of the proper agency. Com. v. Ward, 92 Ky.
statute," etc., which it seems would 158.
have been the proper conclusion in the For substance of indictments for con-
form above, there being a statute then spiracies to defraud a city see State v.
in force applicable to the case. Young, 37 N. J. L. 184; People v. Olson,
3. Conspiracy to Cheat a City. An in- (Buffalo Super. Ct.) 15 N. Y. Supp. 778;
dictment which sets out that certain Casper v. State, 47 Wis. 535.
persons, being members of, composing 4. It was claimed that this informa-
and acting as a municipal board, con- tion should have been quashed, first,
spired to cheat the city of its moneys because it states no offense known to
by corruptly purchasing supplies for the law; second, because it contains no
the city at excessive prices and by pay- allegations of the means by which the
ing salaries to persons who rendered defendants conspired to cheat and de-
no services, is good. After this gen- fraud. The court held that the claim
eral allegation of a corrupt intent it is could not be sustained.
not essential that the statement of the 5. The matter to be supplied within []
means by which the conspiracy was to will not be found in the reported case.
158 Volume 5.
6128. CONSPIRACY. 6129.
l fifty dollars, of the money of it, the said county of Wayne, and to
cheat and defraud it, the said county of Wayne thereof, to the great
damage of it, the said county of Wayne ^concluding as in Form No.
6130).]*
e. An Individual.
(1) GENERALLY.
Form No. 6128.
(Precedent in Thomas v. People, 113 111. 532.)*
[State of Illinois, ) Of the March Term of the Cook County Crim-
Cook County. \ inal Court, in the year of our Lord i8<&4.] 3
The grand jurors, chosen, selected and sworn in and for the county
of Cook in the State of Illinois, in the name and by the authority of
the People of the State of Illinois, upon their oaths present that Ed-
ward F. Thomas and William G. Murphy, late of the county of Cook,
on the first day of December, in the year of our Lord one thousand
eight hundred and eighty-three, in said county of Cook, in the State of
Illinois aforesaid,* feloniously, fraudulently and deceitfully, did con-
spire and agree together, with the fraudulent and malicious intent,
then and there, feloniously, wrongfully and wickedly, to obtain one
horse of the value of $75, one wagon of the value of $5, twenty-five
dozen canned goods of the value of $50 {and other goods described),
and divers and sundry groceries, dry goods, notions and fixtures con-
tained in her grocery store situated on Clark street, in the city of
Chicago, in said county and State (a more particular description of
which said groceries, dry goods, notions and fixtures is to said grand
jurors unknown), of the value of $580, the personal goods and prop-
erty of one Kate Carberry, from the said Kate Carberry, by false pre-
tenses, and to cheat and defraud her, the said Kate Carberry, of the
same, contrary to the statute and against the peace and dignity of
the same People of the State of Illinois.
[Luther Laflin Mills,
State's Attorney.] 3
Form No. 6129.
(Precedent in Com. v. Fuller, 132 Mass. 563.)*
[{Commencing as in Form No. 6121, and continuing down to *.)] 1
* * * And the jurors for the Commonwealth of Massachusetts, on their
aforesaid oath, do further present, that Gardner F. Fuller, otherwise
1. The matter to be supplied within 90 111. 384; Johnson v. People, 22 111.
[ ] will not be found in the reported 314; State v. Grant, 86 Iowa 216; State
case. v. Crowley, 41 Wis. 271.
2. This form is the first count of the 3. The words and figures enclosed
indictment and was held good. The by [ ] will not be found in the reported
second count charged the conspiracy case, but have been added to render
and overt acts in pursuance thereof. the form complete.
Precedents. See also precedents of 4. This form is the second count of
similar character in Evans v . People, the indictment upon which the defend-
159 Volume 5.
6129. CONSPIRACY. 6129.
called Gardner A. Fuller, E. Frank Mosher and Abiel W. K. Newton,
all of said Boston, wickedly devising and intending to cheat and
defraud one Daniel Goodnow, on the eighteenth day of July, in the year
aforesaid, at said Boston, did unlawfully conspire, confederate, com-
bine and agree together, falsely, knowingly, designedly and fraudu-
lently, to cheat and defraud the said Goodnow out of a large quantity
of goods, wares and merchandise, and one vessel called the "Barque
Western Sea" of the property of him, said Goodnow, that is to say:
Three hundred bales of cotton, each of the value of forty dollars; one
hundred and twenty-two bags of wool, each of the value of eighty
dollars; eight hundred and seventy-three pounds of tea, each of the
value of fifty cents; eight hundred and fifty gallons of punch, each of
the value of two dollars; fifty kegs of pickles, each keg the value of
three dollars; one machine, called a "picker," of the value of fifty
dollars; sixty bottles, each of the value of one dollar; twenty-three cases
of wine, each case of the value of twenty dollars; one vessel, called
the "Barque Western Sea" of the value of four thousand eight hundred
dollars; by means of false and fraudulent pretenses thereafter to be
made to said Goodnow by him, said Fuller, that he, said Fuller, had
lately theretofore received an order from the Pepperell Manufactur-
ing Company in Biddeford, in the State of Maine, to buy for and on
account of said company, for its use in its mills there in said
Biddeford, the cotton hereinbefore described; that he, said Fuller,
had lately theretofore received an order from said company, and
said company had given him, said Fuller, the authority to buy for
said company, and on its account, the wool hereinbefore described,
and that said company was in the habit of using said wool in
its mills in said Biddeford, and in the manufacture of cloth there
in its said mills; that said company there in said Biddeford, had a
shop and store in which it commonly sold groceries, teas and wines,
and that said company had given him, said Fuller, an order and the
authority to buy for it, and on its account, the tea, and wine, and
bottles hereinbefore described, for sale by it, said company, then in
its pretended shop in said Biddeford; that said company had given
him, said Fuller, an order, and the authority to buy for it, and on its
account, the machine and picker hereinbefore described, for use in
its mills there in said Biddeford; that said company, because it was in
difficulty about the rates of freight upon the railroads between said
Boston and said Biddeford, and because it needed for use in its busi-
ants were tried, the jury finding a ver- which the fraud was to be accom-
dict of guilty against Fuller and Mosher plished, are all fully set forth, and the
and not guilty against Newton. Mosher defendant is connected with them all.
alleged exceptions, which were over- A conspiracy to cheat and defraud one
ruled. The court, by Allen, J., said: out of his property by means of false
" The second count of this indictment and fraudulent pretenses is an indict-
contains everything necessary in an in- able offense of itself. It is not neces-
dictment for conspiracy, according to sary to set out any overt acts, or any
the strictest rules. The intention to actual injury to the person intended to
cheat and defraud Goodnow, the con- be defrauded, or any denial in detail of
spiracy to do so, the property out of the truth of the various false pretenses;
which he was to be cheated, the false the general statement that the pretenses
and fraudulent pretenses by means of were false and fraudulent is sufficient."
160 Volume 5.
6 1 30. CONSPIRACY. 61 30.
ness in said Biddeford a vessel, had authorized him, said Fuller, to
buy for it, and on its account, a vessel in which to ship and carry
all the goods and articles hereinbefore described, from said Boston
to said Biddeford, and had given him, said Fuller, such authority to
buy for its account the vessel there called the "Barque Western Sea";
that said Abiel W. K. Neiuton, whom he, said Fuller, should introduce
and present to said Goodnow, and who said Newton, should in the
presence of him, said Goodnow and said Fuller, examine said cotton,
and said wool, and said wine, and said punch, and said tea, and said
machine, was the agent of *,2\& Pepper ell Manufacturing Company, and
was the person, on its behalf, who had given him, said Fuller, all the
aforesaid orders and authority, and was examining all said articles,
wares, and merchandise for the purpose of confirming such authority
and orders to him, said Fuller, so to be falsely pretended to said
Goodnow, that said E. Frank Mosher, whom said Fuller should take
to, and introduce and present to, said Goodnow, and who should say to
said Goodnow that the statements of said Fuller to said Goodnow about
him, said Mosher, were true, was the person who had just then been
sent by said company, from said Biddeford, to take command of and
charge of said vessel, and all the goods and articles aforesaid, for
and on behalf of said company, and that said company had just then
paid to said Mosher a month's salary for such service, in advance, and
that he, said Mosher, had just come in to said. Boston from said Bidde-
ford; that said company desired him, said Goodnow, to make a
delivery of all said goods, wares, and vessel, upon a credit of ten days,
and to deliver the same to said Mosher, as and for a delivery to said
company, by him, said Goodnow, upon such credit to it, said company;
to the great damage of said Goodnow, and against the law, peace, and
dignity of said Commonwealth.
\G. Marston, District Attorney.]
Form No. 6130.
(Precedent in People v. Clark, 10 Mich. 310.)'
State of Michigan, County of Wayne: January Term, A. D. i8#;
Recorder's Court of the City of Detroit.
In the name of the people of the State of Michigan, I, David E.
Harbaugh, prosecuting attorney in and for the said county of Wayne,
who prosecute for and on behalf of the people of the said State, in
said court, come now here and give the court to understand and be
informed* that one Charles Clark, and a certain other person, to the
prosecuting attorney, aforesaid, unknown, late of said city, on the 8th
day of January, in the year of our Lord one thousand eight hundred
and sixty-two, at the said city of Detroit, unlawfully, falsely, deceit-
fully, and fraudulently, did combine, conspire, confederate, and agree
together, by divers false pretenses, subtle means and devices, to
obtain and acquire to themselves, of and from one. John M. Whelpley,
a sum of money, to wit, the sum of ten dollars, of the moneys of said
John M. Whelpley, and to cheat and defraud him, the said John M.
1. This information was held sufficient. See also a form in People v. Wins-
low, 39 Mich. 505.
5 E. of F. P. ii. 161 Volume 5.
6131. CONSPIRACY. 6131.
Whelpley, thereof: The said Charles Clark and the other person, un-
known as aforesaid, in pursuance of, and according to said com-
bination, conspiracy, confederation and agreement between them, as
aforesaid had, did on the 8th day of January, A. D. i86"#, at the city
of Detroit aforesaid, by said divers false pretenses, subtle means and
devices, unlawfully, falsely, deceitfully and fraudulently, obtain and
acquire to themselves, of and from the sz\& John M. Whelpley, and of
the moneys, goods and chattels of the said John M. Whelpley, two
pieces of current gold coin of the United States of America, each
piece of the value of five dollars, with intent to cheat and defraud
the svA&JohnM. Whelpley thereof, to the great damage of the said
Whelpley, and contrary to the form of the statute in such case made
and provided, and against the peace and dignity of the people of the
State of Michigan.
David E. Harbaugh,
Prosecuting Attorney of Wayne County, Michigan.
Form No. 6131.
(Precedent in State v. Brady, 107 N. Car. 823.)'
The jurors of the state upon their oath present that N. P. Brady,
M. D. Brady, R. D. Williams and J. W. H. Cocker-man, late of the
county of Moore, on the 10th day of December, iS87, at and in the
county of Moore, with the intent to defraud, unlawfully, wickedly
and deceitfully did conspire together to cheat and defraud William
K. Jackson of his goods and chattels, lands and tenements, contrary
to the form of the statute in such case made and provided, and
against the peace and dignity of the state.
And the jurors aforesaid, upon their oath aforesaid, do further
present that the said N. P. Brady, M. D. Brady, R. D. Williams
and J. W. H. Cockerman, late of the county of Moore, at and in the
said county, on the 10th day of December, iS87, with intent to
defraud, unlawfully, wickedly and deceitfully did conspire together
to cheat and defraud William K. Jackson of his goods and chattels,
lands and tenements, and that the said defendants, in pursuance of
said conspiracy, did falsely and fraudulently pretend to said W. K.
Jackson that two certain tracts of land in Chatham county, contained
gold mines, well knowing that neither of the said tracts of land con-
tained a gold mine; and that, in pursuance of said conspiracy,
the said M. D. Brady did then and there in Moore county unlawfully,
knowingly and designedly obtain from the said W. K. Jackson $800 in
money and the said Jackson's note for 700, being then and there the
property of the said Jackson, and the said N. P. Brady did then and
1. The defendants moved to quash indictment was held sufficient in both
this indictment as to each count on the respects.
ground that it charged no indictable 2. The words and figures enclosed by
offense, and that it did not allege the [ ] will not be found in the reported
means by which the cheating and de- case, but have been added to render the
frauding were to be effected, but the form complete.
162 Volume 5.
6132. CONSPIRACY. 6132.
there in said county of Moore, unlawfully, knowingly and designedly
obtain from the said W. K. Jackson a certain tract of land on Deep
River in Moore county, of the value of $3,000, being then and there
the property of the said Jackson, contrary to the form of the statute
in such case made and provided, and against the peace~and dignity
of the state.
[/. C. Black, Solicitor.] 1
(2) BY INDUCING SURRENDER OF BOND ON PRETENDED CONVEYANCE.
Form No. 6132."
State of Maine.
Cumberland, ss. At the Supreme Judicial Court begun and holden
at Portland within and for the county of Cumberland, on the last Tues-
day of November, in the year of our Lord one thousand eight hundred
and fifty-eight.
The jurors for said state upon their oath present, that William May-
berry and Stephen P. Mayberry, both of Cape Elizabeth, in the county
of Cumberland, laborers, on the twenty-ninth day of June, in the year
of our Lord one thousand eight hundred and fifty-eight, unlawfully,
fraudulently and maliciously, did conspire, combine, confederate and
agree together, one Henry Pennell to cheat and defraud, by then and
there inducing him, the said Henry Pennell, a certain bond, or writ-
ing obligatory, signed with the signature and name and sealed with
the seal of him, the said William Mayberry, whereby he, the said Will-
iam Mayberry, acknowledged himself to be indebted to the said Pen-
nell in the sum of eighteen hundred dollars, and also three certain
promissory notes, each and all signed with the signature and name
of him, the said William Mayberry, the tenor of which said promissory
notes is to the jurors unknown, which said bond or writing obligatory,
and promissory notes, were then and there the property of him, the
said Henry Pennell, and were then and there of great value, to wit,
of the value of one thousand dollars, and were then and there, all and
singular in full force, and not revoked, canceled nor paid, to surren-
1. The words enclosed by [ ] will against the peace and dignity of the
not be found in the reported case, state aforesaid," was held not to charge
but have been added to render the form a conspiracy punishable either at corn-
complete, mon law or under the statute of the
2. This form, save for the omission state (Rev. Stat. (1883), c. 126, 18),
of an allegation held immaterial by the making it a criminal offense to con-
court, is the second count in the indict- spire to " injure the person, character,
ment in State v. Mayberry, 48 Me. 218, business, or property of another; or to
which was held sufficient. do any illegal act injurious to the pub-
Insufficient Indictment. An indict- lie trade, health, morals, police or ad-
ment charging that the defendants ministration of public justice; or to
"being evil-disposed persons, and commit a crime punishable by impris-
devising and intending one Owen Law- onment in the state prison." In the
rence to injure and defraud, did unlaw- indictment, if the means by which the
fully conspire, combine, confederate intended purpose was to be accom-
and agree together the said Owen Law- plished be not set out, the purpose
rence to injure, cheat and defraud of a itself should appear to be illegal. State
certain horse, the property of the said v. Hewett, 31 Me. 396. To the same
Owen Lawrence, of great value, to wit, effect see State v. Clary, 64 Me. 369.
of the value of one hundred dollars,
168 Volume 5.
6133. CONSPIRACY. 6133.
der, cancel and discharge under and by means of the false and fraudu-
lent pretense, that he, the said William Mayberry, was then and there
seised and possessed of a certain parcel of land, with the buildings
thereon, situated in Gray, in said county of Cumberland, and that he
had good right then and there to sell and convey the said land and
buildings to him, the said Henry Pennell, and that he, the said William
Mayberry, would then and there, for the consideration of the surren-
der, cancellation and discharge of the bond or writing obligatory
aforesaid, and of the three promissory notes aforesaid, so as aforesaid
held against him by the said Pennell, sell and convey the land and
buildings aforesaid in Gray aforesaid, to him the said Henry Pennell',
when, in truth and in fact, he the said William Mayberry, was not
then and there seised and possessed, as aforesaid, of such lands or
tenements in said Gray, and they, the said William and Stephen P.
Mayberry, then and there well knew that he, the said William, was
not then and there seised and possessed of said lands or tenements in
said Gray, and that he, the said William, then and there had not good
right then and there to sell and convey to him, the said Henry Pen-
nell, the said lands or tenements situated in Gray aforesaid. And
then and there knowing, as aforesaid, the falsity and fraud of all and
singular the aforesaid pretenses, they, the said William Mayberry and
Stephen P. Mayberry, then and there, as aforesaid, unlawfully, fraudu-
lently and maliciously, did conspire, combine, confederate and agree
together, him, the said Henry Pennell, then and there, as aforesaid,
by the false and fraudulent pretenses aforesaid, to defraud and cheat,
against the peace of the state and contrary to the form of the statute
in such case made and provided.
Andrew Johnson, Foreman.
James Smith, County Attorney.
(3) BY MAKING ONE DRUNK AND PLAYING FALSELY AT CARDS. 1
Form No. 6133.
(Precedent in State v. Younger, I Dev. L. (12 N. Car.) 357. ) 2
[(Caption as in Form No. 6 13 1)] 3
The jurors for the state upon their oath present, that William G.
Younger and Richard I. Cook, on [the tenth day of October, i87,] at
[Rutherfordton in said county] did combine, conspire, confederate and
agree, to and with each other, to cheat and defraud one Peter Dyer
out of his goods and chattels, and in pursuance of the aforesaid agree-
ment, so as aforesaid between them had and made, the said William G.
Younger and Richard I, Cook did, at \Rutherfordton aforesaid] cause
1. For an indictment for a conspiracy ant was convicted and moved in arrest
between several persons to play at a of judgment upon the ground that the
game so that one of them should seem indictment did not state an indictable
by his playing to have much less skill offense at common law. The motion
than he really possessed so as to induce was overruled, and upon appeal the
a looker on to play with him and there- judgment was affirmed.
by lose to him his money, see Reg. v. 3. The matter to be supplied within
Bailey, 4 Cox C. C. 392. [ ] will not be found in the reported
2. Upon this indictment the defend- case.
164 Volume 5.
6134. CONSPIRACY. 6 1 34.
and procure the said Peter Dyer to be intoxicated, and did then and
there propose to him, the said Peter Dyer to play at a game of cards
for money. By means whereof, the said William G. Younger and Rich-
ard I. Cook, by falsely, fraudulently and deceitfully playing at the game
of cards, with him, the said Peter Dyer, for money, they, the said Will-
iam G. Younger and Richard I. Cook, did then and there cheat and
defraud him, the said Peter Dyer, out of the sum [of twenty dollars, law-
ful money of the United States.] And so the jurors aforesaid, upon
their oath aforesaid, do say, that the aforesaid William G. Younger and
Richard I. Cook, by means of the aforesaid combination, conspiracy, con-
federation and agreement, so as aforesaid, between them, in manner and
form as aforesaid had and made, him, the said Peter Dyer, of the afore-
said sum [of twenty dollars] of the goods and chattels of him, the said
Peter Dyer, then and there, in manner and form aforesaid, by falsely,
corruptly and deceitfully playing and gambling at the game of cards
aforesaid, falsely and deceitfully did cheat and defraud, to [the great
damage of him the said Peter Dyer\ and against the peace and dignity
of the state.
[{Signature as in Form No. 6131.)] 1
d. The Public, by Uttering False Bank Notes. 1
Form No. 6134.
(Precedent in Collins v. Com., 3. S. & R. (Pa.) 220.)*
[In the Court of Quarter Sessions of the Peace for the County of
Dauphin, February Session, A. D. i817.
County of Dauphin, ss. The grand inquest of the commonwealth
of Pennsylvania inquiring for the body of the county of Dauphin upon
their oaths and affirmations do present* that Thomas Collins, John
Doe and Samuel Short, all late of said county, on the first day of Jan-
uary in the year of our Lord one thousand eight hundred and seren-
teen, at the county aforesaid and within the jurisdiction of the said
court,] 4 falsely, unlawfully and wickedly did conspire, combine, con-
federate and agree among themselves to deceive and defraud, and to
cause to be deceived and defrauded, divers of the citizens of the
Commonwealth of Pennsylvania, of great sums of money, by means of
false pretenses and false, illegal, and unauthorized paper writings,
in the form and similitude of bank notes, which said paper writings
were of no value, and purported to have been promissory notes, bear-
ing different dates, for the payment of divers sums on demand, by
1. The matter to be supplied within genuine indigo of the best quality, and
[ ] will not be found in the reported so to cheat and defraud the purchasers,
case. Com. v. Judd, 2 Mass. 329.
2. For other forms of indictments for 3. Fqr similar forms of indictment
conspiracy to cheat and defraud the see Williams v. Com., 34 Pa. St. 178;
public see as follows: Clary v. Com., 4 Pa. St. 210; Com. v.
By means of the circulation of a false Delany, i Grant's Cas. (Pa.) 224.
prospectus to induce them to take 4. The words and figures enclosed by
shares in a worthless company. Reg. [ ] will not be found in the reported
v. Gurney, n Cox C. C. 414. case, but have been added to render
By the manufacture of spurious in- the form complete,
digo, with intent to sell the same as
165 Volume 5.
6135. CONSPIRACY 6135.
the Ohio Exporting and Importing Company, at their bank in Cincinnati,
and to have been signed by Z. Sharp as president, and J. Lance as
cashier, when, in verity and truth, no such banking company existed,
and that according to, and in pursuance of the conspiracy, combina-
tion, confederacy, and agreement among themselves, had as afore-
said, the said Thomas Collins 1 afterwards did fraudulently, unlawfully,
and deceitfully, offer, and pay, to one Joseph Preston, for the purpose
of deceiving and defrauding him, 2 the said Joseph, for, and as a good,
genuine, and lawful bank note, one of the aforesaid false, illegal,
and unauthorized paper writings, in the form and similitude of a bank
note, partly written and partly printed, purporting to be a promissory
note for the payment of ten dollars, by the Ohio Exporting and Im-
porting Company, to N. White, or bearer, on demand, at their bank in
Cincinnati, bearing date fat fifteenth day of January, in the year of
our Lord one thousand eight hundred and sixteen, and to have been
signed by Z. Sharp, as president, and J. Lance, as cashier, he, the
said Thomas Collins, did, then and there, to wit, on [the first day of
January, aforesaid, offer as aforesaid], 3 and well knowing that no such
bank existed in Cincinnati, or elsewhere, as the Ohio Exporting and
Importing Company, and, that the said note, purporting to be a bank
note, issued by the said company, was of no value, [to the evil exam-
ple of all others in like case offending and against the peace and dig-
nity of the commonwealth of Pennsylvania.
Daniel Webster, District Attorney.] 3
e. The State.
Form No. 6135.*
Georgia, Richmond County.
The grand jurors selected, chosen and sworn for the county of
Richmond, to wit : (Here insert names of jurors), in the name and
1. An overt act charged to be done conspiracy to cheat either an individual
by one conspirator in pursuance of the or class of individuals, or the public
conspiracy is to be considered as the generally; a general allegation of an
act of all. Collins v. Com., 3 S. & R. intent to cheat and defraud is bad for
(Pa.) 220. But an averment of an uncertainty and ambiguity, and an al-
overt act is not necessary. Clary v. legation of an overt act in pursuance of
Com., 4 Pa. St. 210. the conspiracy directed against a par-
2, It is not necessary to charge the ticular person will not aid the defective
actual defrauding of any person; pass- allegation of the conspiracy. Peoples,
ing, with intent to defraud, is sufficient. Arnold, 46 Mich. 268.
Collins v. Com., 3 S. & R. (Pa.) 220. 3. The words enclosed by [ ] will
And the indictment may charge a con- not be found in the reported case, but
spiracy to cheat or defraud the public have been added to render the form
generally, without naming any indi- complete.
vidual intended to be defrauded. Rexz>. 4. Georgia. 3 Code (1895), 287.
De Berenger, 3 M. & S. 67; Rexz>. Gur- See also 288, 289.
ney, n Cox C. C. 414; McKee v. State, Precedent. In State v. Cardoza, n
in Ind. 378; Com. v. Judd, 2 Mass. S. Car. 195, the indictment was in four
329; People v. Arnold, 46 Mich. 268; counts. The first count charged that
Malone's Case, 2 C. H. Rec. (N. Y.) 22; the defendants were officers of the
Clary v. Com., 4 Pa. St. 210; Collins v. state and then charged the conspiracy,
Com., 3 S. & R. (Pa.) 220. setting forth the means in detail. The
But the indictment must charge a second and third counts were substan-
166 Volume 5.
6136. CONSPIRACY. 6136.
behalf of the citizens of Georgia, charge and accuse John Doe, Samuel
Short and William Rufus, of the county and state aforesaid, with the
offense of conspiracy, for that the said John Doe, Samuel Short and
William Rufus, on the first day of June, in the year of our Lord one
thousand eight hundred and ninety-seven, at the county aforesaid,
did unlawfully and wickedly conspire and agree to -defraud, cheat
and illegally obtain from the state of Georgia a large sum of money,
to wit, the sum of five thousand dollars of the property and moneys
of the said state, contrary to the laws of said state, the good order,
peace and dignity thereof.
Superior Court, A. D. i87, ) Daniel Webster, Solicitor General.
October Term. j" Richard Roe, Prosecutor.
3. To Commit Certain Crimes. 1
a. Abduction of Child.
Form No. 6136.*
The jurors for the state upon their oaths present,* that on the
first day si January, A. D. i8#7, in the county of Wake, one Jane
White then and there being the child of one John White, was residing
with her said father, John White, and that then and there, while the
said Jane White was so residing with her said father, John Doe and
Richard Roe, both late of said county, wilfully, unlawfully and wick-
edly did conspire, combine, confederate and agree together to abduct
the said Jane White from, and induce her the said Jane White to
leave, her father aforesaid, the said John White, she the said Jane
tially the same as the first. These January, in the year of our Lord one
counts were objected to, but were sus- thousand eight hundred and seventy-
tained as sufficient. The fourth count four, with force and arms, at Columbia,
was excepted to on the ground that the in the county and state aforesaid,
statement of the means to be employed unlawfully, falsely, fraudulently and
was insufficient, but the exceptions corruptly did conspire, combine, con-
were overruled. The court, upon a federate and agree together, by divers
careful review of the authorities, dis- false pretenses and indirect means, to
tinguished clearly between conspiracies cheat and defraud the said state of
to defraud a private person and those South Carolina of a large sum of money,
formed for the purpose of defrauding to wit, of the sum of four thousand dol-
the public. Conspiracies of the latter lars, to the great damage of the said
class are indictable in themselves, and state of South Carolina, to the evil ex-
hence no allegation of the means to be ample of all others in like case offend-
employed is necessary, the rule being ing. and against the peace and dignity
otherwise in respect to conspiracies to of the state."
defraud a private person. See also 1. For requisites of indictment gener-
State -v. Rickey, 9 N. J. L. 293. ally see supra, note I, p. 140.
The fourth count was as follows, to 2. .North Carolina. Code (1883),
wit: 974. Under this statute it is not neces-
" And the jurors aforesaid, upon their sary to aver that the defendant was
oaths aforesaid, do further present: not a nearer relation to the child than
That Richard H. Cleaves, Samuel J. Lee, the person from whose custody she
Josephus Woodruff, A. O. Jones and was abducted. State v. George, 93 N.
Francis L. Cardoza, late of the county Car. 567.
and state aforesaid, on the tenth day of
167 Volume 5..
6137. CONSPIRA CY. 6137.
White then and there being under the age of fourteen years, to wit,
of the age of ten years, against the form of the statute in such case
made and provided, and against the peace and dignity of the state.
Daniel Webster, Solicitor.
b. Abortion.
Form No. 6137.'
In the Court of Quarter Sessions of the Peace for the County of Dela-
ware, February Session, A. D. i8#7.
County of Delaware, ss.
The grand inquest of the commonwealth of Pennsylvania, inquiring
for the body of the county of Delaware, upon their respective oaths
and affirmations, do present that John Doe, Samuel Short and Peter
Sharp, all late of said county, being persons of evil minds and dis-
positions, on the, first day of January, in the year of our Lord one
thousand eight hundred and ninety-seven, at the county of Delaware
aforesaid, and within the jurisdiction of .the said court, unlawfully
and wickedly did conspire, combine, confederate and agree together,
in and upon the body of one Rachel Roe an assault to make, with a
wicked intent, to wit, to cause and procure the said Rachel Roe to
miscarry and to bring forth a certain child with which she was then
big and pregnant, dead, to the great damage of the said Rachel Roe,
to the evil example of all others in the like case offending, and
against the peace and dignity of the commonwealth of Pennsylvania.
And the jurors aforesaid, upon their oaths and affirmations afore-
said, do further present that the said John Doe, Samuel Short and
Peter Sharp, being such persons as aforesaid, on the day and year afore-
said, and within the jurisdiction of the said court, unlawfully and
wickedly did conspire, combine, confederate and agree together, to
cause and procure the said Rachel Roe to miscarry and to bring
forth a certain child, with which she was then big and pregnant, dead,
to the great damage of the said Rachel Roe. And the jurors aforesaid,
upon their oaths and affirmations aforesaid, do further present that the
1. This form, from Whart. Prec. (2d Elizabeth Cross was then pregnant and
ed.), p. 470, is based on the counts in that in due course of nature she would
Com. v. Demain, 6 Pa. L. J. 29, Bright, be delivered of a child begotten by the
(Pa.) 441, which were sustained on spe- said John Howe, and wickedly intend-
cial demurrer by the supreme court of ing and contriving to conceal such
Pennsylvania. pregnancy and to prevent such her
Woman not Pregnant. A woman who delivery in due course of nature, on
believes herself to be with child but not June /, i8<?0, did amongst themselves
being with child conspires with other unlawfully, knowingly, and wickedly
persons to administer drugs to herself conspire, combine, confederate, and
or to use instruments on herself with agree together feloniously and unlaw-
intent to procure abortion is liable to fully to procure the miscarriage of the
be convicted of conspiracy to procure said Elizabeth Cross by unlawfully ad-
abortion. Reg. v. Whitchurch, 24 Q. ministering to and causing to be taken
B. D. 420, 8 Am. Cr. Rep. I. The in- by her certain noxious things, and by
dictment in this case was as follows: unlawfully using certain instruments
"The jurors, etc., present that Thomas and other means, with intent to procure
William Whitchurch, John Howe, and the miscarriage of the said Elizabeth
Elizabeth Cross, believing that the said Cross" -The indictment also set out a
168 Volume 5.
6138. CONSPIRACY. 6138.
said defendants, in pursuance of and according to the said conspiracy,
combination, confederacy and agreement between them, the said
defendants as aforesaid, had, on the day and year aforesaid, in the
county aforesaid, and within the jurisdiction of the said court, in and
upon the body of the said Rachel Roe, then and there being pregnant
and big with a certain other child, did make an assault, and her the
said Rachel Roe then and there did bruise, wound and \\\ treat, so that
her life was thereby greatly despaired of, and a certain instrument
made of silver or other metal, in the shape and form of a hook, up
and into the womb and body of the said Rachel Roe then and there
wickedly, violently and inhumanly, did force and thrust, with a
wicked intent to cause and procure the said Rachel Roe, as aforesaid,
to miscarry and abort as aforesaid, and to kill and murder the said
child, by reason whereof, and by means of which the said last-men-
tioned premises, the said child was killed, and its life destroyed and
taken away in its mother's womb ; and the said Rachel Roe, after-
wards, to wit, on the tenth day of January, in the year aforesaid, mis-
carried and was aborted of the said child, being a female child, to the
great injury of the said Rachel Roe, to the evil example of all others
in the like case offending, and against the peace and dignity of the
commonwealth of Pennsylvania.
Daniel Webster, District Attorney.
c. Assault and Battery. 1
Form No. 6138.
(Precedent in Com. v. Putnam, 29 Pa. St. 296.)'
[In the Court of Quarter Sessions of the Peace for the County of Erie,
February Sessions, A. D. i8t57.
County of Erie, ss. The grand inquest of the commonwealth of Penn-
sylvania inquiring for the county of Erie upon their respective oaths
and affirmations do present that Francis Putnam and Samuel Short,
late of said county, on the second day of January in the year of our
number of acts done in pursuance of him a great bodily injury, in violation
the conspiracy, which are not set forth of law; and in pursuance of said con-
in the case as reported. spiring together said defendants did,
1. Precedents. See also forms in in the night-time, feloniously decoy
State v. Ripley, 31 Me. 386; State v. said Charles Blanchard away from his
Pulle, 12 Minn. 164; Reg. v. Denew, 14 home and family, and into the public
How. St. Tr. 895. highway, and did then and there felo-
In State v. Ormiston, 66 Iowa 143, 5 niously assault, ill treat, and tar and
Am. Cr. Rep. 113, an indictment drawn feather the said Charles Blanchard"
under Iowa Code (1897), 5059, was 2. On trial the jury found the de-
held not bad for duplicity when the fendants " guilty in manner and form
charging par was in the words follow- as they stand indicted," but the court,
ing, to wit: on motion of defendant's counsel, ar-
" Calvin Ormiston, David Ormiston rested the judgment on the ground
and Charles Bramer did wickedly and that a conspiracy to commit an assault
maliciously conspire together with in- and battery is not an indictable offense,
tent wrongfully to injure the person and This judgment, however, was reversed
character of one Charles Blanchard, and by the supreme court and the record
to assault the said Charles Blanchard remitted for further proceedings ac-
with the felonious intent to inflict upon cording to law.
169 Volume 5.
6139. CONSPIRACY. 6139.
Lord one thousand eight hundred and fifty-seven,"^- with force and
arms, at the county of Erie aforesaid, unlawfully and wickedly did
conspire, combine, and confederate, and agree together, and with
divers other evil disposed persons whose names are unknown to the
jurors aforesaid, unlawfully to attempt and endeavor to commit an
assault upon Andrew L. Haskell, then and there being in the county
of Erie aforesaid, and him, the said Andrew L. Haskell, to beat,
bruise, wound, and maltreat, and other wrongs to him, the said An-
drew L. Haskell, in his person to do and inflict, against the peace and
dignity of the commonwealth of Pennsylvania.
[C. IV. Kelso, District Attorney.] 1
d. Breaking Jail.
(1) To ESCAPE.
Form No. 6 i 3 9 . s
(Commencing as in Form No. 6122, and continuing down to *) that
William Miirray, David Terry, and Charles Burlingham, all of
Bangor in the county of Penobscot, on the first day of April, i8P7,
were persons lawfully confined in the county jail in Bangor, in the
county aforesaid, then and there lawfully detained in the custody of
the keeper of said prison, by divers legal processes then in force
against them, and that they, the said William Murray, David Terry,
and Charles Burlingham, unlawfully contriving and intending to
break down, demolish, prostrate and destroy part of the wall belong-
ing to and inclosing the said prison, and thereby unlawfully to effect
the escape of themselves, the said William Murray, David Terry, and
Charles Burlingham, and divers other prisoners then lawfully con-
fined in said prison and in the custody of the keeper thereof from
and out of the same, on the first day of April aforesaid, at Bangor
in the county aforesaid, did unlawfully conspire, combine, confederate
and agree among themselves, and meet together for the purposes
aforesaid, and being so assembled and met together, did then and
there, in pursuance of the conspiracy, combination, confederacy and
agreement aforesaid, so as aforesaid had among themselves, unlaw-
fully and wickedly began to break down, demolish, prostrate and
destroy part of the said wall with intent thereby unlawfully to effect
the escape of themselves so there confined in the said prison and in
the custody of the keeper thereof, against the peace (concluding as in
Form No. 6122\
1. The words enclosed by [ ] will court held that the principal charge
not be found in the reported case, but was the conspiracy, and that the break-
have been added to render the form ing of the floors, etc., were alleged as
complete. evidence of the consummation of the
2. This form is based on the indict- project, and that the conspiracy to
ment in State v. Murray, 15 Me. 100, commit a misdemeanor was not merged
in which case the defendants, having in the commission of it, and the ex-
been found guilty, filed exceptions. It ceptions were overruled.
was objected that the indictment was See also forms in Davis' Prec. 106,
bad in that it charged two crimes, con- 107; 3 Chit. Cr. L. 1150, 1151.
spiracy and prison breach, but the
170 Volume 5.
6140.
CONSPIRACY.
6141.
(2) To INJURE OR KILL PRISONER.
Form No. 6140.'
{Commencing as in Form No. 6136, and continuing down to *) that
heretofore and at the time of committing the offenseJhereinafter men-
tioned one John White was a prisoner lawfully confined in the county
jail of the county of Wake, situated at Raleigh in the county aforesaid,
and lawfully detained by the keeper of the said jail under a charge of
rape, and that John Doe, Richard Roe, and Samuel Short, all of the
county of Wake aforesaid, and divers other persons to the jurors afore-
said unknown, on thefirsfday of January, A. D. i87, at the county
aforesaid, unlawfully and wickedly, did conspire, combine, confederate
and agree together to break and enter the said jail and place of con-
finement for the purpose of killing 2 the said John White, he, the said
John White, so being a prisoner and confined in said jail as aforesaid,
against (concluding as in Form No. 6136).
e. Burglary.
Form No. 6141.
(Precedent in Scudder v. State, 62 Ind. I4.) 3
[In the Jefferson Circuit Court of Indiana of the November Term, A. D.
1 877.
1. North Carolina. Laws (1893), c.
461, I.
2. Or otherwise injuring the prisoner.
N. Car. Laws (1893), c. 461, I.
3. This form is sufficient under Horn-
er's Stat. Ind. (1896), 2139.
Precedent. In Brown v. State, 2 Tex.
App. 115, it was held that in an indict-
ment for conspiracy the same degree of
particularity is not required in charging
an unexecuted conspiracy as in charg-
ing an executed one. The charging
part of the indictment, which was held
to be sufficient (see Tex. Pen. Code
( I 8g5), 953 et seq.}, was in the words
and figures following, to wit:
" On the iqth day of June, A. D. one
thousand eight hundred and seventy-six,
the said Peter Brown, Sam Mason, Henry
Helm, and Bob White, being persons of
evil minds and dispositions, wickedly
devising, and intending fraudulently,
burglariously, and by force to break
and enter, in the night-time, the store-
house of E. H. Newlon and/. K. Will-
iams, composing the commercial firm
of E. H. Newlon <2r> Co., situated in said
Harrison county, with the intent to
fraudulently take, steal, and carry away
from, and out of, the possession of the
said E. H. Newlon and/. K. Williams,
and without their consent, and with the
intent to deprive the said E. H. Newlon
and/. K. Williams of the value of the
same, and to appropriate the same to
the use of them, the said Peter Brown,
Sam Mason, Henry Helm, and Bob
White, certain goods and groceries,
of the value of one hundred dollars,
the property of the said E. H. New-
Ion and/. K. Williams, they, the said
Peter Brown, Sam Mason, Henry Helm,
and Bob White, did, on the day and
date aforesaid, in the county aforesaid,
fraudulently, maliciously, and unlaw-
fully conspire, combine, confederate,
and positively agree together, between
and amongst themselves, by force and
in the night-time, to burglariously enter
the said store-house of the said E. H.
Newlon and/. K. Williams, then and
there situate as aforesaid, with the in-
tent as aforesaid to fraudulently take,
steal, and carry away the goods and
groceries as aforesaid, of the value of
one hundred dollars, the property of the
said E. H. Newlon and/. K. Williams,
without their consent and with the in-
tent to deprive the said E. H. Newlon
and/. K. Williams of the value of the
same, and to appropriate said goods
and groceries to the use of them, the
said Peter Brown, Sam Mason, Henry
Helm, and Bob White"
171
Volume 5.
6 1 42. CONSPIRACY. 6 1 42.
State of Indiana \
against /
Edward D. Scudder, George Scott and f
Jacob Batchell. ] * J
The grand jurors for the county of Jefferson upon their oath pre-
sent, that Edward D. Scudder, George Scott and Jacob Batchell, on the
25th day of December, A. D. i877, at said county of Jefferson, did unlaw-
fully and feloniously unite, combine, conspire and agree together and
among themselves, and each of them with the others, for the purpose
of feloniously and burglariously breaking and entering, in the night-
time, into the storehouse of one Frederick W. Hoblizel then and there
situate, with the intent the moneys, goods and chattels of 2 the said
Frederick W. Hoblizel then and there being, to [feloniously] 3 steal,
take and carry away, contrary to the form of the statute in such case
made and provided, and against the peace and dignity of the state of
Indiana.
[/. F. Bellamy, Prosecuting Attorney.] 1
f. Destroying Property.
(1) DWELLING-HOUSE.
Form No. 6142*
State of Vermont, )
Rutland County, ss. )
Be it remembered that at a term of the County Court begun and
held at Rutland within and for the county of Rutland aforesaid, on the
tenth day of May, A. D. i8#7, the grand jurors within and for said
county of Rutland upon their oath present, that John Doe, Samuel
Short and William Rufus, all late of Rutland, in the said county of
Rutland, on the first day of April, A. D. iS97, at the county aforesaid,
did unlawfully and wickedly conspire together for the purpose and
with the intent violently and forcibly to burn and destroy the dwelling-
house of one John White, situate at Rutland 'in the said county, con-
trary to the form of the statute in such case made and provided, and
against the peace and dignity of the state.
1. The words enclosed by [ ] will of a larceny. It was so held also in
not be found in the reported case, but Smith v. State, 93 Ind. 67.
have been added to render the form 4. Vermont. Stat. (1894), 5052.
complete. This statute makes it a criminal offense
2. Kind and Value of Goods. An in- to conspire to kill, maim or wound any
dictment for a conspiracy to commit person, or to rob any person, corpora-
burglary, with the intent to steal, take tion or community, or to burn, blow
and carry away the personal property of up or otherwise destroy any bank
a person named, is not defective for building, store, factory, dwelling or
failing to state the kind or value of the other building, or depository of prop-
goods intended to be stolen. Reinhold erty, or a railroad car or engine, or any
v. State, 130 Ind. 467. vessel, steamboat or other water craft,
3. The indictment in this case was finished or unfinished, for use in navi-
held insufficient because it alleged an gable waters.
intent to "steal, take," etc., instead of See a similar statute in Connecticut
" to feloniously steal, take," etc., in ac- relating solely to public property. Conn,
cordance with the statutory definition Gen. Stat. (1888), 1421, 1422.
172 Volume 5.
6143. CONSPIRACY. 6145.
(2) RAILROAD TRACKS.
Form No. 6143.'
(Commencing as in Form No. 6128, and continuing down to *) feloni-
ously did conspire and combine to take up, injure and destroy a cer-
tain railroad track belonging to the Illinois Central Railroad Company,
there situate, which said track was then and there necessary to the
free use of said railroad, contrary to (concluding as in Form No. 6128).
g. Murder. 2
Form No. 6144.
(Ala. Crim. Code (1886), g 4899, No. 29.)'
The State of Alabama. ) . .. ,.- , , on ~
M ' } Circuit court, March term, i8#7.
Monroe county. (
The grand jury of said county charge that, before the finding of
this indictment, John Doe and Samuel Short conspired together to
unlawfully, and with malice aforethought, kill Richard Roe, against
the peace and dignity of the State of Alabama.
Daniel Webster, Solicitor of the third circuit.
Form No. 6i4S. 4
Pulaski Circuit Court.
The State of Arkansas }
against
John Doe and Richard Roe. }
The grand jury of Pulaski county, in the name and by the authori-
ty of the state of Arkansas, accuse John Doe and Richard Roe of the
crime of conspiracy, committed as follows, viz: The said John Doe
and Richard Roe, on theyfo/day of June, A. D. i8#7, in the county
aforesaid, did then and there unlawfully agree and conspire together
to unlawfully and with malice aforethought kill and murder one John
White, then and there being in the peace of the state, and in pursu-
ance of the said agreement and conspiracy, and as an advance thereto, 5
they, the said John Doe and Richard Roe, did then and there lie in
wait for the said John White, with intent to kill and murder him, the
said John White, as aforesaid, which said murder they, the said John
Doe and Richard Roe, did not then and there commit, 6 against the
peace and dignity of the state of Arkansas.
Daniel Webster, Prosecuting Attorney.
1. Illinois. Starr & C. Anno. Stat. 4. Arkansas. Sand. & H. Dig. (1894),
(1896), c. 38, 187. 1506.
2. For other forms of indictment for 5. Under the statute, the conspirators
conspiracy to commit murder see Rex must make some advance toward com-
v. Glennan, 26 How. St. Tr. 438; Rex mitting the felony.
v. Dunn, 26 How. St. Tr. 839; State v. 6. Under the Arkansas statute (Sand.
Tom, 2 Dev. L. (13 N. Car.) 569. & H. Dig. (1894), 1506), a conspiracy
For conspiracy to murder unborn in- to commit a felony is not indictable
fant. Reg. v. Banks, 12 Cox C. C. 393. after the felony has been committed.
3. Alabama. Crim. Code (1886), It is therefore necessary to allege in the
4007, 4008. indictment that the felony which the de-
173 Volume 5.
6146. CONSPIRACY. 6146.
h. Procuring Defilement of Young Female.
Form No. 6146.
(Precedent in Reg. v. Mears, 4 Cox C. C. 425, i Eng. L. & Eq. 581. ) l
Borough, town and County of the )
town of Southampton, to wit. j
The jurors for our lady the Queen, upon their oath and affirmation,
present, that Mary Ann Mears, late of the parish of St. Mary, in the
town and county of the town aforesaid, single woman, being a person
of wicked and depraved mind and disposition, and contriving and
craftily and deceitfully intending to debauch and corrupt the morals
of one Johanna Carroll, as hereinafter mentioned, and to seduce her
into an infamous and wicked course of life, heretofore, and after the
passing of a certain act of Parliament for the better preventing the
heinous offense of procuring the defiling of women, to wit, on the ll+th
day of November, in the year of our Lord i850, with force and arms,
at the parish aforesaid, in the town and county aforesaid, did know-
ingly, deceitfully, and unlawfully attempt and endeavor, as much as
in her lay, to procure the said Johanna Carroll then and there being a
child under the age of twenty-one years, to wit, of the age of fifteen
years, an orphan, and a servant out of place, to have illicit carnal con-
nection with a man, to wit, a certain man whose name is to the jurors
aforesaid unknown, by then and there knowingly and unlawfully,
falsely and fraudulently pretending and representing to the said
Johanna Carroll that she, the said Mary Ann Mears, was the friend of
the said Johanna Carroll, and knew her father and mother, and that
if she, the said Johanna Carroll, would go home with her, the said
Mary Ann Mears, she the said Mary Ann Mears would keep her until
fendants are charged with conspiring wit, of the age of fifteen years, to have
to commit was not committed. Elsey illicit carnal connection with a man, to
v. State, 47 Ark. 572. wit, with a certain man whose name is
1. It was held in this case that the to the jurors aforesaid unknown."
prisoners were rightly convicted of a This form, while charging an offense
conspiracy under Stat. 12 & 13 Viet., at common law, was drawn under the
c. 76, and that they might have been in- provisions of the Criminal Law Amend-
dicted for the offense at common law. ment act (14 & 15 Viet., c. 100). It is
Precedents. For indictments for unnecessary to state any venue in the
similar conspiracies see 5 Cox C. C. body of the indictment, the venue in
Appendix viii; Rex v. Grey, 9 How. St. the margin being sufficient. Nor is it
Tr. 127; and 6 Cox C. C. Appendix necessary to allege that the offense was
Ixxix, where the indictment is as fol- committed "with force and arms" or
lows: "against the peace." To adapt the form
"Staffordshire, \ The jurors for our to American practice, the venue and
to wit. ) Lady the Queen, usual conclusion should be added,
upon their oath present that Jo An Doe Joinder of Counts. A count fora con-
and Richard Roe, on the first day of spiracy to induce a female to have illicit
June, in the year of our Lord i8j-j>, did criminal intercourse may be joined with
between themselves conspire, com- counts charging the abduction of the
bine, confederate and agree together said female for the purpose of prostitu-
wickedly, knowingly and designedly, tion and detaining her against her will
to procure, by false pretenses, false in a house of prostitution, although the
representations and other fraudulent former offense is a misdemeanor and
means, one Jane Grey, then being a girl the others a felony. Herman v. People,
under the age of twenty-one years, to 131 111. 564.
174 Volume 5.
6146. CONSPIRACY. 6146.
she, the said Johanna Carroll, could get a place, and that she, the said
Mary Ann Mears, would herself try all she could to get her a place;
and by then and there, under such false and fraudulent pretenses and
representations, taking her, the said Johanna Carroll, to the- home of
the said Mary Ann Mears, and keeping her there for ajong space of
time, and soliciting her and trying to induce her then and there to
have illicit carnal connection with the said man; whereas, in truth and
in fact, the said Mary Ann Mears was not the friend of the said/i?-
hanna Carroll, and the said Mary Ann Mears did not intend to take,
and did not take, the said Johanna Carroll home with her to keep her,
the said Johanna Carroll, till she, the said Johanna Carroll, could get a
place, or till she, the said Mary Ann Mears, could obtain a place for
her, but craftily and subtly, with the wicked design and purpose, by
the said false and fraudulent pretenses, representations, and means
aforesaid, to procure the said Johanna Carroll to have connection with
a man as aforesaid, contrary to the form of the statute in such case
made and provided, and against the peace of our lady the Queen, her
crown and dignity. And the jurors aforesaid, upon their oath and
affirmation aforesaid, do further present that Amelia Chalk, late of the
parish aforesaid, in the town and county aforesaid, laborer, at the time
of the committing of the said misdemeanor by the said Mary Ann
Mears as aforesaid, to wit, on the day and year aforesaid, at the parish
aforesaid, in the town and county aforesaid, the said Mary Ann Mears
to do and commit the said misdemeanor wickedly, knowingly, and un-
lawfully did aid, abet, and assist, contrary to the form of the statute in
such case made and provided, and against the peace of our lady the
Queen, her crown and dignity. And the jurors aforesaid, upon their
oaths and affirmation aforesaid, do further present, that the said Mary
Ann Mears and the said Amelia Chalk, afterwards, to wit, on the said lth
day of November, in the year aforesaid, with force and arms, at the
parish aforesaid, in the town and county aforesaid, knowingly, wick-
edly, and unlawfully, did, by false pretenses, false representations, and
other fraudulent means, attempt to procure the said Johanna Carroll,
then and there being a child under the age of twenty-one years, to
wit, of the age of fifteen years, to have illicit carnal connection with
a man, to wit, a certain man whose name is to the jurors aforesaid
unknown, contrary to the form of the statute in such case made and
provided, and against the peace of our lady the Queen, her crown
and dignity. And the jurors aforesaid, upon their oath and affirma-
tion aforesaid, do further present, that the said Mary Ann Mears and
the said Amelia Chalk afterwards, to wit, on the day and year afore-
said, with force and arms, at the parish aforesaid, in the town and
county aforesaid, did, between themselves, conspire, combine, con-
federate, and agree together, wickedly, knowingly and designedly, to
procure by false pretenses, false representations, and other fraudulent
means, the said Johanna Carroll, then being a poor child under the age
of twenty-one years, to wit, of the age of fifteen y ears, to have illicit
carnal connection with a man, to wit, a certain man whose name is to
the jurors aforesaid unknown, contrary to the form of the statute in
such case made and provided, and against the peace of our lady the
Queen, her crown and dignity.
175 Volume 5.
6147. CONSPIRACY. 6147
i. Procuring Elopement of a Minor Daughter.
Form No. 6147.'
(Commencing as in Form No. 6134, an d continuing down to *) that at
the time of the commission of the several grievances hereinafter
mentioned and for a long time before, at said county, one Jane M.
Nevin, a daughter of David Nevin and Maria, his wife, of said county,
was a minor under the age of twenty-one years, and was dwelling
and residing in the family of her said father, and under his paternal
care, guardianship, protection, instruction, control, authority, and
employment. And the said jurors on their said oaths and affirma-
tions, do further present, that Joseph Mifflin, late of the said county,
yeoman, Robert C. Hays, late of said county, physician, and David H.
Culbertson, late of said county, yeoman, being persons of evil minds
and dispositions, together with divers other evil-disposed persons to
the jurors aforesaid unknown, on the eighth day of June, in the year
of our Lord one thousand eight hundred and forty-three, at the
county aforesaid, with force and arms, etc., unlawfully, wickedly,
falsely, maliciously, and injuriously did conspire, combine, confeder-
ate, and agree together to cause, effect, produce, and procure the
elopement and escape of the said Jane M. Nevin from the house,
family, guardianship, protection, control, care, authority, and employ-
ment of her said father, the said David Nevin, without the consent of
her said father, and against his will ; and in pursuance and furtherance,
and according to the said conspiracy, combination, confederacy, and
agreement between them, the said Joseph Mifflin, Robert C. Hays and
David H. Culbertson, as aforesaid had, did, on the night between the
tenth and eleventh days of June, in the year aforesaid, at said county,
entice, persuade, cause, procure and assist the said Jane M. Nevin to
elope, escape, and depart from her said father's, the said David Nevin s,
house, family, care, guardianship, protection, authority, control,
and employment, secretly, covertly, and without his leave, con-
sent, or approbation, and against his will, the said Jane M. Nevin
then and there still being a minor under the age of twenty-one years;
to the great damage of the said David Nevin, and of his said minor
daughter, to the evil example of all others in the like case offend-
ing, and against the peace and dignity of .the commonwealth of
Pennsylvania.
And the jurors aforesaid, upon their oaths and affirmations aforesaid,
do further present, that the said Joseph Mifflin, Robert C. Hays and Da-
vid H. Culbertson, together with divers persons to the jurors aforesaid
unknown, being persons of evil minds and dispositions, afterwards, to
wit, on the day and year aforesaid, at the county aforesaid, with force
and arms, etc., unlawfully, wickedly, deceitfully, maliciously, and in-
juriously did conspire, combine, confederate and agree together to
cause, induce, persuade and procure the said Jane M. Nevin, the said
Jane M. Nevin then and there being a minor under the age of twenty-
one years, and dwelling and residing in the house and family of her
1. This form, given in Whart. Free. Mifflin v. Com., 5 W. & S. (Pa.) 461.
(2d ed.), p. 489, is the indictment which For a similar indictment see Respublica
was sustained on error by the supreme v. Hevice, 2 Yeates (Pa.) 114
court of Pennsylvania in the case of
176 Volume 5.
6148. CONSPIRACY. 6148.
father, David Nevin, and under his paternal care, guardianship, pro-
tection, control and authority, to escape, elope and depart from her
said father's house, family, care, guardianship, protection, and con-
trol, without her said father's consent, and against his will, with the
view, purpose and intent that she, the said Jane M. Nevin, might be
joined in marriage with one Charles M. Reynolds, without the consent
and approbation and against the wish and will of the said David
Nevin, and in violation of his lawful and parental rights and authority.
And the jurors aforesaid, on their oaths and affirmations aforesaid,
do further present, that the said Joseph Mifflin, Robert C. Hays
and David H. Culbertson, with the said other persons unknown, in
pursuance and furtherance of and according to the said conspiracy,
combination, confederacy and agreement between them, the said
Joseph Mifflin, Robert C. Hays and David H. Culbertson, as aforesaid
had, did, on the night between the tenth and eleventh days of June, in
the year aforesaid, about the hour of one o'clock, at Shippensbury , in
said county, and within the jurisdiction of this court, wickedly,
falsely, maliciously, unlawfully and injuriously entice, persuade, cause,
procure, aid, and assist the said Jane M. Nevin to elope, escape and de-
part from her said father's house, family, care, guardianship, protection,
control and authority, in the company and along with the said Charles
M. Reynolds, and secretly and without the knowledge, approbation,
and consent, and against the will of the said David Neinn, with the
view, purpose and intent that she, the said Jane M. Nevin, should be
joined in marriage with the said Charles M. Reynolds, without the
consent and against the will of her said father; and with the same
intent and purpose, and in furtherance of and according to the said
conspiracy, combination, confederacy and agreement, the said Joseph
Mifflin, Robert C. Hays and David H. Culbertson and other persons
unknown, then and there did aid, assist, abet and co-operate with
the said Jane M. Nevin and Charles M. Reynolds, secretly and
covertly to carry away and remove a large quantity of clothing,
goods and chattels of the said David Nevin, and to place the said
Jane M. Nevin and the said goods, chattels and clothing within and
'upon a certain railroad car then and there passing, so that the said
Jane M. Nevin might be swiftly and secretly conveyed and carried
away and transported beyond the pursuit and protection of her said
father, with the intent, view and purpose aforesaid ; to the great dam-
age of the said David Nevin, to the evil (concluding as in Form No.
6134).
j. Procuring Marriage Falsely to Appear of Record.
Form No. 6148.
(Precedent in Com. v. Waterman, 122 Mass. 44.)'
[Commonwealth of Massachusetts, \ At the Superior Court begun
County of Suffolk. f ss ' and holden at Boston, within
and for the county of Suffolk, on the second Monday of September, in
the year of our Lord one thousand eight hundred and seventy-six.'] 2
1. This indictment was held to suffi- be found in the reported case, but have
ciemly charge an indictable offense. been added to render the form com-
3. The words enclosed by [ ] will not plete.
5 E. of F. P. 12. 177 Volume 5.
6 1 48. CONSPIRACY. 6148.
The jurors for the commonwealth of Massachusetts, on their oath
present, that Edgar R. Butter-worth, Maud M. Waterman, Lizzie
Douglass, Henry M. Ingraham and Moses S. Marshall, all of said Bos-
ton, on the sixteenth day of March, in the year one thousand eight
hundred and seventy-five, at Boston, aforesaid, with wicked intent to
cause it falsely to appear, of record that one Roderick D. Richardson
was lawfully married to said Maud, and with intent to injure said
Richardson thereby, and to prevent said Richardson (he, said Richard-
son, then and ever since being an unmarried man) from contracting
any marriage, except with said Maud, and with intent to cheat and
defraud, unlawfully and wickedly did combine, conspire, confederate
and agree together that said Marshall should then and there apply in
person to Nicholas A. Apollonio, the registrar of births, deaths and
marriages, duly appointed and qualified, in said city of Boston, to record
all facts concerning marriages, and should falsely represent to said
registrar that he, said Marshall, was said Roderick D. Richardson (said
Richardson then being a citizen of said Boston, other than said Mar-
shall), and should, in the office of said registrar in said Boston, give
notice, and state that said Richardson and said Maud were both then
residents of said Boston, and that said 'Richardson and Maud then in-
tended shortly to be joined in marriage at said Boston, and should
request and obtain from said registrar the certificate of said notice
in such case required by law to be given by said registrar; that there-
after at said Boston, said Butterworth (he, said Butterworth, being then
and there a justice of the peace for said county of Suffolk, duly com-
missioned and qualified) should falsely, and before, and without any
marriage between said Maud and said Richardson, with a certain
certificate and writing under the hand of and signed by him, the said
Butterworth, as such justice, purporting to be a copy of a truthful
and genuine record of a marriage, therein falsely alleged to have
been solemnized by said Butterworth, as such justice at said Boston,
between said Richardson and said Maud, pursuant to said notice, and
said certificate to be obtained from said registrar in manner and form
as aforesaid; and that said Douglass and Ingraham should thereupon
falsely and publicly pretend to have been present at such marriage'
as witnesses thereto; and that said Maud should thereupon, without
the knowledge of said Richardson, cause to be delivered such copy of
record of marriage (signed by said Butterworth as aforesaid) to said
registrar, at his said office, for record, as and for a true and genuine
copy of a truthful and genuine record of marriage, and that thereafter
said Maud should publicly assume to be the wife of said Richardson,
and that the said Butterworth, Douglass, Ingraham and Marshall
should declare such assumption to be just and true within their
own knowledge; and the jurors aforesaid, upon their oath aforesaid,
do further present that then and there, in pursuance of said conspiracy
and agreement, said Marshall did then and there apply to said regis-
trar, and give said notice, and then and there pretend to be said
Richardson, and did then and there receive such certificate of said
notice from said registrar; and said Butterworth did thereafter, to wit,
on said day, at said Boston, as such justice, write and sign such false
copy of record as and for a true certificate and copy of a truthful record
178 Volume 5.
6 1 49. CONSPIRACY. 6 1 49.
of marriage, and said Douglass and Ingraham did then and there pub-
licly declare themselves to have been witnesses of such marriage, and
said Maud did thereafter cause said writing, signed by said Butter-
worth, to be duly entered and recorded in the office of sa*id registrar,
at said Boston; and said Maud did thereafter publicly say and aver
falsely, that she, said Maud, was the lawful wife of said Richardson,
and said Butterworth, Douglass, Ingraham and Marshall did declare
the same to be true as of their own knowledge.
Whereas, in truth and in fact, said Marshall 'then and there was not
said Roderick D. Richardson, but said Richardsonvia.s a man other than
said Marshall; and said Roderick did not then and there, nor did he
at any time, intend to be joined in marriage with said Maud; nor did
said Richardson desire said notice to be given to said registrar by said
Marshall, or by any other person, or by himself, said Richardson; nor
did he, said Richardson, at any time before said notice was given as
aforesaid, know that the same was to be given; and whereas, in truth
and fact, said Richardson was never joined in marriage by said Butter-
worth to said Maud, nor was he, said Richardson, ever married to any
person whomsoever, nor was there any truthful record of any mar-
riage between said Maud and said Richardson, all of which said But-
terworth, Douglass, Waterman, Ingraham and Marshall^ the time they
so combined, confederated and agreed together, and at the time they
committed the acts hereinbefore set forth, then and there all well knew.
And so the jurors aforesaid, upon their oaths aforesaid, do say that
said Butterworth, Marshall, Ingraham, Douglass and Waterman, at said
Boston, on said sixteenth of March, did unlawfully combine, conspire,
confederate and agree together, by the means and in form aforesaid,
to cause said Richardson falsely to appear of record to be married to
said Maud, against the law, peace and dignity of said commonwealth.
\W. C. Loring, District Attorney.] 1
k. Robbery.
Form No. 6149.
(Precedent in Landringham v. State, 49 Ind. 187.)*
[In the Marion Criminal Circuit Court of Indiana, of the June Term,
1 8 74.
State of Indiana
against
James Landringham.^-
The grand jurors for the county of Marion, and State of Indiana,
upon their oath present that James Landringham on the 12th day of
November, A. D. i87^, at and in the county of Marion, and State afore-
said, did unlawfully and feloniously unite, combine, and conspire with
1. The words and figures enclosed by gether to unlawfully take one thousand
[ ] are not in the reported case, but have dollars in money, the property of Julius
been added to render the form complete. C. Hudspeth, from his person, and
2. This form is sufficient under Horn- against his will, by violence to his per-
er's Stat. Ind. (1896), g 2139. son, or by putting him in such fear as
Under the Alabama statutes, an in- unwillingly to part with the same."
dictment was held good which charged Thompson v. State, 106 Ala. 67, 9 Am.
that the defendants " conspired to- Cr. Rep. 199.
179 Volume 5.
6150. CONSPIRACY. 6150.
Thomas King, for the purpose of making an assault upon one Thomas
J. Barlow, and for the purpose and with the intent then and there
of feloniously and forcibly taking from the person of the said Barlow
[by violence, and putting in fear the said Barloui^ ten United States
treasury notes, of the denomination of ten dollars each and of the
value of ten dollars each (and other notes, describing them), all of said
notes being the personal goods of said Barlow, contrary to the form
of the statute in such case made and provided, and against the peace
and dignity of the State of Indiana.
[/". M. Cropsey, Prosecuting Attorney.] 2
Form No. 6150.
(Precedent in People v. Richards, 67 Cal. 412, 6 Am. Cr. L. Rep. 42. ) 3
In the Superior Court [of the county of Santa Clara, State of Cali-
fornia, Monday, the seventh day of February, iS85.
The People of the State of California "|
against I Information.] 2
John Richards.
John Richards is accused by the district attorney of the county of
Santa Clara, State of California, by this information, of conspiracy,
committed as follows:
The said John Richards, on or about the 9th day of September, A. D.
i S84, at the county and state aforesaid, did conspire with ont David
Davis, feloniously and by means of force and fear to take certain
bank checks to and of the value of 15,000 from the person and
immediate presence of one Henry Miller, the owner thereof, against
the will of the said Henry Miller ; 4 and immediately theretofore, and
for the purpose of said taking, to compel said Henry Miller, by means
of force and fear, to draw, make, and sign said checks; and said
defendant in pursuance of said conspiracy, and to effect the object
thereof, did on or about the date last named, proceed from the town
of Hollister, in the county of San Benito, State of California, to the
city of Gilroy, in the county of Santa Clara, in said State, and did
1. The words enclosed by [] were not void. Landringham v. State, 49 Ind.
in the precedent, which on that account 186; Scudder v. State, 62 Ind. 13; Mil-
was held insufficient. In accordance ler v. State, 79 Ind. 198.
with the terms of the statute defining 2. The words and figures enclosed by
robbery, the indictment should have [ ] will not be found in the reported
used the words "by violence" or case, but have been added to render the
" putting in fear." And an indictment form complete.
under the Indiana statute must describe 3. The superior court sustained a
the particular felony intended to be demurrer to this information on the
committed with the same substantial ground that there must be two persons
accuracy as would be necessary in an at least joined as defendants, but on
indictment for such felony. Landring- appeal the supreme court after a full
ham v. State, 49 Ind. 186; State v. Me- review of the authorities reversed the
Kinstry, 50 Ind. 465; Scudder v. State, judgment and remanded the cause with
62 Ind. 13; Miller v. State, 79 Ind. 198; direction to the court below to over-
Smith v. State, 93 Ind 67. rule the demurrer and require the
The proviso formerly contained in defendant to plead to the indictment,
the act that it should not be necessary 4. The language of the statute defin-
to charge the particular felony intended ing robbery is here used. See Cal. Pen.
to be committed is unconstitutional and Code (1897), 211.
180 Volume 5.
6151. CONSPIRACY. 6151.
arm and disguise himself, and on the 18th of September, i8<, did set
forth from said city of Gilroy along the road leading therefrom to
the certain place in the county last aforesaid, known as Pacheco Pass,
there to lie in wait for said Henry Miller, and consummate the pur-
pose of the said conspiracy, contrary to the form, force, and effect
of the statute in such cases made and provided, and against the
peace and dignity of the people of the State of California.
[/. H. Campbell, District Attorney.] 1
1. Seduction by Sham Marriage. 3
Form No. 6151.
(Precedent in State v. Savoye, 48 Iowa 562.)'
[District Court of the County of Allamakee.
The State of Iowa
against
Charles Savoye and
Conrad A mold. ] 1
The jurors of the grand jury of the State of Iowa within and for
said county of Allamakee, legally convoked, impaneled, tried, sworn
and charged, in the name and by the authority of the State of Iowa,
upon their oaths do aver, find and present that Charles Savoye and
Conrad Arnold, at and within said county, on or about the 15th day
of August, 1 875, with force and arms unlawfully, wickedly, deceitfully,
maliciously and injuriously, did conspire, combine, confederate and
agree together, to cause, induce, persuade and procure one Mary
Ellen Elizabeth Stielsmith* commonly known as Elizabeth or Lizy
Stielsmith, she the said Lizy Stielsmith then and there being a minor
under the age of twenty-one years, to wit, nineteen years old, to go
with them, the said Charles Savoye and Conrad Arnold, with the view,
purpose and intent, with the intention of bringing about a sham
marriage or pretended marriage between her, the said Lizy Stielsmith,
and him, the said Charles Savoye, and thus bring about the seduction
of her, the said Lizy Stielsmith, in violation of law. 5
[y. F. Mcjunkin,
County Attorney of Allamakee County.] 1
1. The words enclosed by [ ] will not of the conspirators to be authorized to
be found in the reported case, but have celebrate the marriage, who actually
been added to render the form com- performed the ceremony, in conse-
plete. quence of all of which the daughter
2. Sufficient Indictments. An indict- and her parents were deceived, and
ment is unobjectionable both in form she cohabited with her pretended hus-
and substance which alleges a conspira- band. State v. Murphy, 6 Ala. 765.
cy falsely and fraudulently to seduce 3. This indictment was held to suffi-
from her virtue and carnally to know ciently charge a conspiracy to commit
an unmarried female by procuring the a crime.
consent of herself and parents to her 4. Previous Character of Woman. It
marriage with one of the conspirators, was held in this case unnecessary to
and then, in furtherance of such con- charge that the woman was unmarried
spiracy, producing a forged license, as- and of a previously chaste character.
suring them of its genuineness, falsely 5. Accomplishment of Purpose. This
and fraudulently representing another indictment contained another count,
181 Volume 5.
6152. CONSPIRACY. 6152.
m. Soliciting Bribes. 1
Form No. 6152.
(Precedent in Com. v. Smith, 163 Mass. 413. ) 2
[(Commencing as in Form No. 6131, and continuing down to *)] 3 * * *
And the jurors aforesaid, on their oath aforesaid, do further
present that Horace I. Pinkham, Charles H. Cox, Fred H. Gate, George
O. Tilton, William W. Ham, Charles H. Cray, and Hadley H. Hoyt, all
of Haverhill in said county of Essex, at Haverhill in said county of
Essex, on the Tuesday next after the first Monday of December in the
year of our Lord one thousand eight hundred and ninety-three, to wit, on
the fifth day of December in the year of our Lord one thousand eight
hundred and ninety-three, said fifth day of December being the day
of the annual municipal election of the city of Haverhill, a municipal
corporation duly established by law and located within said county of
Essex, were severally duly elected by the qualified voters of the city
at large, voting in their respective wards, as aldermen of said city,
to severally hold their said offices as aldermen for one year from the
first Monday of January next following the said fifth day of December
in the year of our Lord one thousand eight hundred and ninety-three,
and until a majority of the new board should be elected and qualified
in their places, said first Monday of January being the first day of
January in the year of our Lord one thousand eight hundred and
ninety-four, the said Horace I. Pinkham being then and there at said
annual municipal election chosen From and by the qualified voters of
the city at large, the said Charles H. Cox being then and there at said
annual municipal election selected from the first ward of said city,
the said Fred H. Cate being then and there at said annual municipal
election selected from the second ward of said city, the said George O.
Tilton being then and there at said annual municipal election selected
from the third ward of said city, the said William W. Ham being then
and there at said annual municipal election selected from i\\z fourth
ward of said city, the said Charles H. Croy being then and there at
said annual municipal election selected from the fifth ward of said
city, and the said Hadley H. Hoyt being then and there at said annual
municipal election selected from the sixth ward of said city, and that
the said Horace I. Pinkham, Charles H. Cox, Fred H. Cate, George O.
Tilton, William W. Ham, Charles H. Croy, and Hadley H. Hoyt there-
after, to wit, on the said first day of January in the year last afore-
said, severally duly qualified as such aldermen, and then and there
severally became and were municipal officers, to wit, aldermen of said
city of Haverhill, and thenceforward severally continued to be muni-
cipal officers, to wit, aldermen of said city of Haverhill, until the day
alleging the accomplishment of the ob- sufficient see Shircliff v. State, 96 Ind.
ject of the conspiracy in pursuance 369.
thereof, but this count is omitted in the 2. This is the second count of the in-
text, as the court held that it was im- dictment, on which the defendants were
material on an indictment for con- properly convicted.
spiracy whether the object intended be 3. The matter to be supplied within
accomplished or not. the [ ] and the first and third counts of
1. Bribery. For indictment for a the indictment are not set out in the
conspiracy to commit bribery held reported case.
182 Volume 5.
6152. CONSPIRACY. 6152.
of the finding of this indictment; and that at the said annual muni-
cipal election of said city of Haverhill, holden on the said fifth day
of December in the year of our Lord one thousand eight hundred and
ninety-three, at said Haverhill, the legal voters of said city of Haver-
hill duly voted to authorize the granting of licenses for the sale of
intoxicating liquors in said city of Haverhill for the year commencing
on the first day of May in the year of our Lord one thousand eight
hundred and ninety-four, by then and there at said annual municipal
election duly and by lawful majority vote, voting "Yes" upon the
question, " Shall licenses be granted for the sale of intoxicating
liquors in this city? " the warrant for said annual municipal election
duly containing an article providing for a vote upon said question,
whereby the mayor and aldermen of said city of Haverhill, duly
elected and qualified, and holding their offices for one year from the
first Monday of January in the year of our Lord one thousand eight
hundred and ninety-four, and until a majority of the new board should
be elected and qualified in their places, might lawfully grant licenses
of the first five classes for the sale of intoxicating liquors for the year
commencing on the first day of May in the year of our Lord one
thousand eight hundred and ninety-four.
And the jurors aforesaid, on their oath aforesaid, do further pre-
sent that Fred M. Smith, of Boston in the county of Suffolk and said
Commonwealth, Charles A. Kimball, Fred H. Gate, George O. Til ton,
William W. Ham, and Hadley H. Hoyt, all of said Haverhill, in said
county of Essex, did, at said Haverhill, on the first day of February,
in the year of our Lord one thousand eight hundred and ninety-four,
then and there well knowing the premises, unlawfully and maliciously
conspire, combine, confederate, and agree together, and with divers
other persons whose names to the jurors are unknown, to unlawfully
counsel, solicit, incite, and procure divers persons who should there-
after duly make applications to said mayor and aldermen of said city
of Haverhill for licenses of any of the first five classes to sell intoxi-
cating liquors in said Haverhill, for the year commencing on the first
day of May in the year of our Lord one thousand eight hundred and
ninety-four, and whose names and a further description of whom are
to the jurors unknown, unlawfully and corruptly severally to give
gifts and gratuities, to wit, certain sums of money, the amount, value,
and further descriptions of which said sums of money are to the jurors
unknown, to the said Fred H. Gate, George O. Tilton, William W.
Ham, and Hadley H. Hoyt, they then and there being aldermen of
said city of Haverhill as aforesaid, the said applications for licenses
to sell intoxicating liquors being then and there matters which might
by law thereafter come and be brought before them, the said Fred
H. Gate, George O. Tilton, William W. Ham, and Hadley H. Hoyt, in
their official capacities of aldermen as aforesaid, with intent on the
part of said divers persons who should make applications for licenses
as aforesaid then and there, by the gifts and gratuities aforesaid, to
influence the acts, votes, opinions, decisions and judgments of the
said Fred H. Gate, George O. Tilton, William W. Ham, and Hadley H.
Hoyt, in their official 'capacities of aldermen as aforesaid, upon the
said applications for licenses to sell intoxicating liquors in said
183 Volume 5.
6153.
CONSPIRACY.
6153.
Haverhill thereafter to be duly made as aforesaid, against the peace
of said Commonwealth and contrary to the form of the statute in such
case made and provided.
[ IV. H. Moody, District Attorney. ]
4. To Hinder Trade OP Commerce. 1
a. By Formation of Trust.
Form No. 6153.
(Precedent in Hathaway v. State, (Tex. Crim. App. 1896) 36 S. W. Rep. 465.)'
[In the Name and by the Authority of the State of Texas.
The grand jurors for the county of McLennan, state aforesaid,
duly organized as such at the term, A. D. i&96, of the District
1. For statutes making it a misde-
meanor to conspire to commit any act
injurious to trade or commerce see as
follows:
California. Pen. Code (1887), 182.
Florida. Rev. Stat. (1892), 2593.
Idaho. Rev. Stat. (1887), 6540.
Illinois. Starr & C. Anno. Stat.
(1896), c. 38, 46.
Minnesota. Stat. (1894), 6423.
Mississippi. Anno. Code (1892),
1006.
Missouri. Rev. Stat. (1889), 3780.
Montana. Pen. Code (1895), 320.
New Jersey. Gen. Stat. (1895), p.
1093, 236.
New York. Pen. Code, 168 (Birds.
Rev. Stat. (1896), p. 587, i).
North Dakota. Rev. Codes (1895),
7037.
South Dakota. Dak. Comp. Laws
(1887), 6425.
Tennessee. Code (1896), g 6693.
Utah. Rev. Stat. (1898), 4156,
For a statute prohibiting the associa-
tion of persons to prevent any person
from apprenticing himself to learn a
trade, or for the purpose of inducing
one so apprenticed to leave the employ-
ment of his employer, see 3 Ga. Code
(1895), 119.
For the formal parts of an indictment,
information or criminal complaint in a
particular jurisdiction consult the titles
INDICTMENTS; INFORMATIONS; CRIMINAL
COMPLAINTS.
For other forms of indictments see as
follows:
Conspiracy by workmen against em-
ployers to compel reinstatement of dis-
charged employee. Reg. v. Bunn, 12
Cox C. C. 316; Reg. v. Rowlands, 17
Q. B. 671, 79 E. C. L. 670.
Conspiracy by workmen to leave their
employment in violation of contract.
Reg. v. Bunn, 12 Cox C. C. 316.
By workmen to prevent their em
ployers from retaining and employing
apprentices. Rex v. Ferguson, 2 Stark.
489, 3 E. C. L. 500.
By workmen to raise their wages.
People v. Fisher, 14 Wend. (N. Y.) 9;
People v. Melvin, 2 Wheel. Cr. Cas.
(N. Y. Gen. Sess.) 262. But see N. Y.
Pen. Code, 170, as amended Laws
(1882), c. 384 (Birds. Rev. Stat. N. Y.
(1896), p. 588, 3).
By employees to obstruct employers
with a view to coerce them to dismiss
certain workmen, and to intimidate
workmen so as to coerce them to quit
their employment. Reg. v. Hibbert, 13
Cox C. C. 82; Reg. v. Bauld, 13 Cox.
C. C. 282.
Conspiracy to impoverish a certain
gas company and prevent the said
company from carrying on its busi-
ness. Reg. v. Bunn, 12 Cox C. C. 316.
To impoverish a man and prevent
him from working at his trade. I Cox
C. C. Appendix xxvii; Rex v. Eccles, 3
Doug. 337, 26 E. C. L. 131.
See also State v. Glidden, 55 Conn. 46;
State v. Donaldson, 32 N. J. L. 151;
People v. Everest, 51 Hun (N. Y.) 19.
2. This indictment, framed under
Tex. Pen. Code (1895), art. 981, con-
tained six counts, of which the above
is the first, the four succeeding counts
being similar and the sixth further
charging the conspiracy at great length.
The defendant Hathaway was convicted
and appealed, and the decision of the
lower court was reversed on the ground
that the proof failed to show that the
defendant was one of the original con-
spirators composing the trust, or that
he afterward entered into and joined
184
Volume 5.
6153. CONSPIRACY. 6153.
Court for said county, upon their oaths in said court, present] 1 that
in said county of McLennan, state aforesaid, on or about October 1,
1894, John D. Rockefeller, Henry M. Flagler, William Rockefeller,
John D. Archbald, Benjamin Brewster, Henry H. Rogers, Wesley H.
Til ford, Henry Clay Pierce, Arthur M. Finley, C. M. Adams, J. P.
Gruet, E. Wells, Wm. Grice, E. T. Hathaway, and F. A. Austin did
unlawfully agree, combine, conspire, confederate, and engage with
William E. Hawkins and divers other persons to the grand jurors
unknown, in a conspiracy against trade, then and there with the said
William E. Hawkins and the said other persons, creating a trust by
a combination of their capital, skill and acts with the said William E.
Hawkins and other persons, for the purpose, design and effect to
create and carry out restrictions in trade, to wit, in the manufacture,
production, sale, trade, and shipment of petroleum, petroleum oils,
all the products of petroleum, refined oils, illuminating oils, and
lubricating oils, the same being commercial commodities, by keeping
the price of said oils at a certain price per gallon, and at a certain
price as otherwise sold, which price was far above the true market
price of said oils, and for the purpose and effect to prevent competi-
tion in the manufacture, production, sale, trade and shipment of
petroleum, petroleum oils, all the products of petroleum, refined oils,
illuminating oils, and lubricating oils, and to limit and reduce the
production of such products, and to raise the price thereof above
the true market value, and cause the same to be purchased by the
actual consumers at a great price above the true market value, and
to prevent competition in the manufacture, production, sale, trade
and shipment of petroleum, petroleum oils, all the products of petro-
leum, refined oils, illuminating oils, and lubricating oils, the same
being commercial commodities, and products of prime necessity to
the people, and for the purpose and effect to fix at a certain standard
and figure the price of petroleum, petroleum oils, all the products of
petroleum, refined oils, illuminating oils, and lubricating oils, whereby
the prices thereof were and are established and fixed in said county
of McLennan at a fictitious value, greatly in excess of the true
market value. And the said John D. Rockefeller, Henry M. Flagler,
William Rockefeller, Benjamin Brewster, John D. Archbald, Henry
H. Rogers, Wesley H. Tilford, Henry Clay Pierce, Arthur M. Finley,
C. M. Adams, J. P. Gruet, E. Wells, Wm. Grice, E. T. Hathaway,
and F. A. Austin, did then and there unlawfully make and enter into a
trust, combination, contract, agreement, obligation and conspiracy
with the said William E. Hawkins and other persons in said county,
and all of said persons did agree, combine, conspire, confederate and
engage with each other, and among themselves, that they would not
manufacture, produce, sell, trade, and ship petroleum, petroleum
said conspiracy, but that he was a mere away and the other defendants as prin-
agent. The court said: " In order to cipals in the conspiracy,
convict a person of being an agent of a See a somewhat similar statute in
conspiracy, such as is described in the Ky. Gen. Stat. (1894), 3915.
statute, the indictment must allege that 1. The words enclosed by [ ] will not
fact, and must also allege that he knew be found in the reported case, but have
of the conspiracy." No objection was been added to render the form corn-
made to the indictment as against Hath- plete.
185 Volume 5.
6154. CONSPIRACY. 6 1 54.
oils, all the products of petroleum, refined oils, illuminating oils
and lubricating oils below a certain price, which price was and is far
above the true market value of said commercial commodity, and that
they would fix and keep the price of said oils in said county at a cer-
tain price and graduated figures, and that for the purpose of estab-
lishing and setting the prices of said oils amongst themselves, and to
preclude and destroy free and unrestricted competition in the manu-
facture, production, sale, trade and shipment of said oils, they agreed
to pool, combine, and unite their interests in the manufacture, pro-
duction, sale, trade and shipment of said oils, so that the price thereof
would be affected and fixed at a certain figure; against the peace and
dignity of the state.
\Andrew Johnson, Foreman of the Grand Jury.] 1
b. By Obstructing Business of a Corporation.
Form No. 6154.
(Precedent in People v. Petheram, 64 Mich. 254.)"
State of Michigan The Circuit Court for the County of Newaygo.
Newaygo County ss. : George Luton, prosecuting attorney in and
for the county of Newaygo, aforesaid, for and in behalf of the people of
the State of Michigan, comes into said court, in the May term thereof,
in the year one thousand eight hundred and eighty-six, and gives the
court here to understand and be informed that heretofore, to wit, on
the twenty- fourth day of January, 1886, Sit the village of Newaygo, in
said county, J. W. Petheram, chief engineer, and Fred. Coleman,
assistant engineer, and James McLaughlin, roadmaster, of the Chi-
cago 6 West Michigan Railway Company, and Adam McNabb, together
with divers other persons whose names are unknown, to the number
of seventy-Jive, being persons of evil minds and dispositions, did unlaw-
fully and wickedly conspire, combine, confederate and agree together
wilfully and maliciously to obstruct and impede the regular opera-
tion and conduct of the business of the Newaygo Manufacturing Com-
pany, a corporation organized under the laws of this State, to wit,
the manufacture of lumber, pails and tubs, flour and feed, by it then
and theretofore carried on in said village of Newaygo, by acts and
means of intimidation, to wit, by then and there assembling together
in the night-time, and entering upon the premises of said corporation
in said village, and obstructing the usual flow of water in the canal
thereon, owned by it, and by means of which its said business was
and had been so carried on, and by force and violence preventing
the employees of said corporation from removing said obstructions,
and thereby preventing the lowering of the water in said canal, and
by causing a quantity of hay and other foreign material to float down
1. The words enclosed by [] will not court. The information was drawn
be found in the reported case, but have under How. Anno. Stat. Mich. (1882),'
been added to render the form com- 9275. See also similar statutes as
plete. follows :
2. The defendant was tried and con- Kansas. Gen. Stat. (1889), 2482.
victed upon this information, and the Mississippi. Anno. Code (1892),
conviction was affirmed by the supreme 1270.
186 Volume 5.
6155. CONSPIRACY. 6155.
said canal, and clog and obstruct the wheels used in propelling the
machinery and mills and factory of said corporation in said village,
which were then owned and operated by said corporation for the
purpose aforesaid, against the form of the statute in such case made
and provided, and against the peace and dignity of the people of the
State of Michigan.
George Luton, Prosecuting Attorney.
[(Verification.')] 1
e. By Preventing Corporation from Employing Certain Workmen.
Form No. 6155.
(Precedent in State v. Stewart, 59 Vt. 274. ) 2
[State of Vermont, \ -, 3
Caledonia County, j 'J
Be it remembered, that at the County Court begun and holden at St.
Johnsbury, the grand jurors [within and for said county of Caledonia,
upon their oath] 3 present that James D. Grant, Charles C. Stewart,
Orrin E. Clay, John McGeough, Edward O' Toole and Lewis Hill, all of
Ryegate, in the county of Caledonia, with divers other evil-disposed
persons, to the said grand jurors unknown, on the 13th day of April,
A. D. i8<5, a.t Ryegate, in the county of Caledonia, did unlawfully com-
bine, conspire, confederate and agree together to prevent, hinder and
deter 4 by violence, threats and intimidation, 5 the Ryegate Granite
Works, a corporation then and there being and existing by law, from
retaining and taking into its employment James O'Rourke, William
Goodfellow and other persons, to the said grand jurors unknown, then
and there being as laborers in the labor and occupation of granite cut-
ting, to the great damage of the said Ryegate Granite Works, and the
said James O' Rourke and William Goodfellow and other persons, to
the said grand jurors unknown, then and there being as laborers in
the labor and occupation of granite cutting, to the great damage of the
said Ryegate Granite Works, and the said James O'Rourke and William
Goodfellow and others, and to the evil example of all men and against
the peace and dignity of the State.
1. Verification. The information was ploying them ex vi termini implies a
duly verified, but the verification was purpose to do so.
not set out in the reported case. 5. It is not necessary to allege the
2. This indictment was sustained on means, the object of the conspiracy be-
defendant's demurrer and motion to ing unlawful at common law, but the
quash the same, and the judgment of Vermont statutes (Stat. (1894), 5041,
the county court overruling the de- 5042) prescribe a punishment for using
murrer and motion was sustained by threats or intimidation to prevent a
the supreme court. person from accepting or continuing
3. The words enclosed by [ ] will not an employment in a mill, etc.; hence
be found in the reported case, but have the first two counts of this indictment
been added to render the form com- were held to charge a conspiracy to do
plete. an act unlawful at common law by
4. It was held in this case that an means unlawful under the statute. In
averment that the granite works de- alleging the means it is sufficient to use
sired or intended to employ said work 7 the language of the statute, without
men was unnecessary. An allegation setting out specifically the kind of
that it was in fact prevented from em- threats, etc., employed.
187 Volume 5.
6155. CONSPIRACY. 6155.
And tne grand jurors aforesaid upon their oath aforesaid further
present that the said James D. Grant, Charles C. Stewart, John Mc-
'Geough, Edward O' Toole and Lewis Hill, all of Ryegate, in the county of
Caledonia, with other evil-disposed persons, to the said grand jurors
unknown, at Ryegate aforesaid, on the 18th day of April, A. D. i&85,
maliciously intending to control, injure, terrify and impoverish the
Ryegate Granite Works, a corporation then and there being and exist-
ing by law, and by violence, threats and intimidation, to force and
compel said corporation to conform to the rules, regulations, by-laws
and decrees of a branch of the National Stone Cutters' Union, an organ-
ization then and there existing, and to deprive said corporation of all
the workmen and laborers then and there by it employed in its works
and shops there situate, unlawfully did conspire, combine, confederate
and agree to terrify, frighten, alarm, intimidate and drive away by
threats and intimidation, James O'Rourke, Hugh J. O'Rourke, William
Goodfellow and others, to the said grand jurors unknown, who were
then and there workmen and laborers of the said Ryegate Granite
Works, to the evil example of all men and against the peace and dignity
of the State.
And the grand jurors aforesaid upon their oath aforesaid further
present that the said James D. Grant, Charles C. Stewart, Orrin E.
Clay, John McGeough, Edward O' Toole and Lewis Hill, being granite
cutters by occupation and not being content to allow other granite
cutters to pursue their avocation and employment wherever they
wished and upon whatever terms might be agreed upon between said
other granite cutters and their employers, but contriving and unjustly
intending to destroy the effect of free competition in the price and
value of labor, to coerce and constrain said other granite cutters and
their employers and to compel said other granite cutters to desist
from labor and to deprive the employers thereof of all their laborers
and apprentices and thereby to ruin and destroy their business, did,
on the 13th day of April, A. D. i&85, at Ryegate aforesaid, with force and
arms combine, conspire, confederate and unlawfully agree together
and did enter into an organization and compact whereby it was, among
other things, provided that none of the parties to said compact and
organization should labor or cut granite for any person or persons or
corporation whose shop or works had been by the parties to said com-
pact and organization disapproved of and adjudged to be "scab
shops " or works, and that no other granite cutters should be allowed
to work or cut granite for or in such " scab shops " or works, and that
all other granite cutters in this country should be notified that the
shops or works so adjudged to be " scab " were " scab " and that work
therein by granite cutters was forbidden by said organization and
that all granite cutters who disregarded said prohibition and worked
or cut granite in such "scab" shop or works should be called "scabs"
and that their names should be published as " scabs " in a certain
newspaper called the Granite Cutters'" Journal, a newspaper of wide cir-
culation among granite cutters in this country, and that all granite
cutters in this country should thereby be notified not to associate or
work in the same shop with any of the parties so published as
"scabs." And the said James D. Grant, Charles C. Stewart, Orrin E.
188 Volume 5.
6155. CONSPIRACY. . 6155.
Clay, John McGeough, Edward O' Toole and Lewis Hill, in pursuance of
the said unlawful conspiracy, combination and compact with the intent
to prevent the prosecution of work in the shops and works of the said
Ryegate Granite Works next hereinafter mentioned, did then and there
threaten and say to James O'Rourke, Hugh J. O'Rourke, William Good-
fellow and others who were then and there laborers, workmen and
apprentices as granite cutters in the shops and works there situate of
the Ryegate Granite Works, a corporation then and there being and
existing by law and there carrying on the business of cutting granite
and manufacturing granite work, that said shops and works of the said
Ryegate Granite Works were "scab" shops and "scab" works and
that no granite cutters were allowed to work therein and that the said
James O'Rourke, Hugh J. O'Rourke, William Goodfellow and others
would be " scabs " if they worked in said last named shops or works
and that their names would be published as " scabs " in said Granite
Cutters' Journal if they worked in the last named shops or works and
that they would be disgraced in the eyes of all granite cutters and
would be avoided and shunned by all granite cutters, and that all other
granite cutters would refuse to work or associate with them, if they
worked in the said last named shops or works, and were published as
"scabs" as aforesaid; and by means of the said sayings and threats,
the said James D. Grant, Charles C, Stewart, Orrin E. Clay, John Mc-
Geough, Edward O' Toole and Lewis Hill did then and there affright,
drive away and prevent the said James O'Rourke, Hugh J. O'Rourke,
William Goodfellow and others from accepting, undertaking and
prosecuting their said employment in said shops and works of the
said Ryegate Granite Works, with the intent of them, the said James D.
Grant, Charles C. Stewart, Orrin E. Clay, John McGeough, Edward
O' Toole and Lewis Hill last aforesaid.
And so the said grand jurors say on their oath aforesaid that the
said James D. Grant, Charles C. Stewart, Orrin E. Clay, John McGeough,
Edward O' Toole and Lewis Hill did then and there in manner afore-
said, by threats, intimidation and the unlawful and grievous con-
spiracy aforesaid, carried into execution, affright, drive away and
prevent the said James O'Rourke, Hugh J. O'Rourke,- William Good-
fellow and others from accepting, undertaking and prosecuting the
employment and work of stone cutting in said shops and works of the
said Ryegate Granite Works, with the lawful intent of them, the said
James D. Grant, Charles C. Stewart, Orrin E. Clay, John McGeough,
Edward O' Toole and Lewis Hill, thereby to prevent the prosecution
of work in said Ryegate Granite Works, said shops and works, con-
trary to the form and effect of the statute in such case made and
provided, and against the peace and dignity of the State.
And the said grand jurors, upon their oath aforesaid, further pre-
sent that said James D. Grant, Charles C. Stewart, Orrin E. Clay, John
McGeough, Edward O' Toole and Lewis Hill, all of Ryegate aforesaid,
with the unlawful intent and purpose to prevent the prosecution of
work which was then and there carried on by the Ryegate Granite
Works, a corporation then and there existing under the laws of the
State of Vermont, in the manufactory of the Ryegate Granite Works
aforesaid, then and there situate, did then and there threaten the
189 Volume 5.
6156. CONSPIRACY. 6156.
said James O'Rourke, Hugh J. O'Rourke, William Goodfellow and
others, to the said grand jurors unknown, who were then and there
at work in said manufactory, that they, the said James O'Rourke,
Hugh J. O 'Rourke, William Goodfellow and others, would be "scabs"
and be called and advertised as " scabs " and that they, the said
James D. Grant, Charles C. Stewart, Orrin E. Clay, John McGeough,
Edward O' Toole and Lewis Hill, would cause the names of the said
James O 'Rourke, Hugh J. O 'Rourke, William Goodfellow and others to
be published in the " scab " list in the Granite Cutters' Journal, a
paper of wide and extended circulation among granite cutters in the
United States, if they, the said James O'Rourke, Hugh J. O' Rourke,
William Goodfellow and others, continued work in the said manu-
factory, and the said term " scab " as so threatened to be used by
the said James D, Grant, Charles C. Stewart, Orrin E. Clay, John Mc-
Geough, Edward O' Took and Lewis Hill, is an opprobrious and dis-
graceful epithet, the use of which, in the manner threatened by the
said fames D, Grant, Charles C. Stewart, Orrin E. Clay, John Mc-
Geough, Edward O' Toole and Lewis Hill, would have the effect to
disgrace the said James O'Rourke, Hugh J. O'Rourke, William Good-
fellow and others, and make it difficult and impossible for them to
get employment in their said employment of cutting stone in places
where work of that character was wanted; and the effect of using
the term "scab," in the manner threatened, was well known both to
the said James D. Grant, Charles C. Stewart, Orrin E. Clay, John
McGeough, Edward O' Toole and Lewis Hill, and also to the said
James O'Rourke, Hugh J. O'Rourke, William Goodfellow and others,
if they, the said James O'Rourke, Hugh J. O'Rourke, William Good-
fellow and others continued work in said manufactory and by said
threats then and there made, they, the said James D. Grant, Charles
C. Stewart, Orrin E. Clay, John McGeough, Edward O' Toole and Lewis
Hill did then and there, at Ryegate, aforesaid, unlawfully affright,
drive away and prevent the said fames O'Rourke, Hugh J. O'Rourke,
William Goodfellow and others from prosecuting said employment in
said manufactory, contrary to the form and effect [of the statute in
such case made and provided, and against the peace and dignity
of the State.] 1
d. By Preventing Workman from Obtaining Employment.
Form No. 6156.
(Precedent in State v. Dyer, 67 Vt. 691. ) 2
[State of Vermont, \ County Court, at their September Term, in
Washington County, ss. \ the year of our Lord one thousand eight
hundred and ninety-four.
Be it remembered, that J. T. Lamson, state's attorney within and for
said county, in his own proper person comes into court here, and upon
his oath of office, gives said court to understand and be informed,] 1
1. The words enclosed by [ ] will not 2. This information was sustained as
be found in the reported case, but have being in substantial compliance with
been added to render the form complete, the common-law precedents. It charges
190 Volume 5.
6156. CONSPIRACY. 6156.
that Josiah B. Dyer and Thomas Quinlan, of Barre, in the county of
Washington, and Frank Morrill, Patrick Morrison, Peter Hernon, E.
D. Sherburne, H. P. Sylvester, Thomas Hocking and Alex Cruickshank,
of Montpelier, in the county of Washington, with divers ^evil-disposed
persons, to the state's attorney unknown, on the 22d day of Novem-
ber, in the year of our Lord one thousand eight hundred and eighty-
nine, at Montpelier, in the county of Washington, did unlawfully
combine, conspire, confederate and agree together to prevent, hinder
and deter, by violence, threats and intimidation, one Jacob McClure,
then and there being a stone cutter by trade and occupation, in the
employment of the Wetmore 6 Morse Granite Campany of Montpelier,
aforesaid, a corporation then and there being and existing by law, from
obtaining work or employment, or continuing in his said work and
employment, 1 at his said trade or occupation, in the said shops of
the said Wetmore 6 Morse Granite Company of Montpelier aforesaid,
or in any other shops or works for the cutting or manufacture of
granite work, with the malicious and unlawful intent, of them the
said Josiah B. Dyer, Thomas Quinlan, Frank Morrill, Patrick Mor-
rison, Peter Hernon, E. D. Sherburne, H. P. Sylvester, Thomas Hoc kin,
and Alex. Cruickshank by said violence, threats and intimidation, to
prevent the said Jacob McClure from obtaining work or employment
at his said trade or occupation in the shops and works of the said
Wetmore &* Morse Granite Company of Montpelier aforesaid, or in any
other shops or works for the cutting or manufacture of granite
work, [contrary to the form, force and effect of the statute in such
case made and provided, and against the peace and dignity of the
state.
And the said J. P. Lamson, state's attorney as aforesaid, upon his
oath of office aforesaid, gives said court further to understand] 2 that
Josiah B. Dyer, Thomas Quinlan, of Barre, in the county of Washing-
ton, and Frank Morrill, Patrick Morrison, Peter Hernon, E. D. Sher-
burne, H. P. Sylvester, Thomas Hocking and Alex. Cruickshank, of
Montpelier, in the county of Washington, on the #&/day of November, in
the year of our Lord one thousand eight hundred and eighty-nine, at
Montpelier, in the county of Washington, being granite cutters by occu-
pation, not being content to allow other granite cutters to pursue their
avocations and employment wherever they wished, and on whatever
terms might be agreed upon between said other granite cutters and their
a conspiracy to do acts unlawful at ment that the conspiracy was to prevent
common law by means unlawful under McClure " from obtaining work orem-
the statute of Vermont. ployment or continuing in his said
In Com. v. Hunt, 4 Met. (Mass.) 125, work and employment " was alternative
an indictment charging that the defend- and bad, but the court held that as it
ants formed themselves into a society was alleged that McClure was in the
and agreed not to work for any person employment of the company when the
who should employ workmen not mem- conspiracy was formed, obtaining em-
bers of such society, after notice given ployment in its shops and continuing
him to discharge such workmen, was employment there are synonymous
held not to charge a criminal conspiracy, terms, and convey a conjunctive and
The law of such combinations was ex- not a disjunctive meaning,
amined at length by Shaw, C. J., in the 2. The words enclosed by [ ] will not
opinion of the court. be found in the reported case, but have
1. It was contended that the aver- been added to render the form complete.
191 Volume 5.
6156. CONSPIRACY. 6156.
employers, but contriving and unjustly and unlawfully intending to
destroy the effect of free competition in the price and value of labor,
to coerce and constrain said other granite cutters to join and become
members of a branch of the National Stone Cutters' Union, an
organization then and there existing, at Montpelier aforesaid, and to
prevent said other granite cutters from obtaining work at their said
trade and occupation, did on the #&/day of November, A. D iS89, at
Montpelier aforesaid, with force and arms, combine, conspire, con-
federate and agree together, and did enter into an organization and
compact whereby it was, among other things, provided that no per-
son or persons not members of said branch of the said stone cut-
ters' union should be allowed to work in the shops of the Wetmore 6
Morse Granite Company of Montpelier aforesaid, or in any other shop
or works for the cutting of granite, or manufacturing of granite
work. And the said Josiah B. Dyer, Thomas Quintan, Prank Morrill,
Patrick Morrison, Peter Hernon, E. D. Sherburne, H. P. Sylvester,
Thomas Hocking and Alex. Cruickshank in the pursuance of the said
unlawful conspiracy, combination and compact, with the intent by
violence, threats and intimidation to prevent one Jacob McClure, then
and there being a stone cutter by trade and occupation, from obtain-
ing or continuing work at his occupation of granite cutting, in the
said shops or works of the said Wetmore 6 Morse Granite Company of
Montpelier aforesaid, or in any other shops or works for the cutting of
granite, did then and there threaten and say to Jacob McClure, who was
then and there a laborer and workman as a granite cutter in the shops
and works of the said Wetmore 6 Morse Granite Company of Montpelier
aforesaid, that if he, the said Jacob McClure, did not join and become a
member of a branch of the National Stone Cutters' Union, then and there
organized existing at said Montpelier, that they, the said Josiah B. Dyer,
Thomas Quinlan, Frank Morrill, Patrick Morrison, Peter Hernon,
E. D. Sherburne, H. P. Sylvester, Thomas Hocking and Alex. Cruick-
shank, and others unknown to the state's attorney, would organize a
strike against the said Jacob McClure, in the shops and works of the
said Wetmore 6 Morse Granite Company of Montpelier aforesaid, and
would prevent him, the s^ft. Jacob McClure, from obtaining work at
his said trade of stone cutting in said shops of the said Wetmore 6*
Morse Granite Company of Montpelier aforesaid, or in any other shops
or works where granite cutting or manufacturing was carried on.
And the said Jacob McClure refusing then and there to become a
member of the said branch of the National Stone Cutters' Union, the
said Josiah B. Dyer, Thomas Quinlan, Frank Morrill, Patrick Morrison,
Peter Hernon, E. D. Sherburne, H. P. Sylvester, Thomas Hocking and
Alex. Cruickshank, did then and there threaten and say, to the said
Wetmore & Morse Granite Company of Montpelier aforesaid, that unless
the said Jacob McClure was turned away from his employment as a
granite cutter, in the said shops and works of the said Wetmore <5r*
Morse Granite Company of Montpelier aforesaid, they, the said Josiah B.
Dyer, Thomas Quinlan, Frank Morrill, Patrick Morrison, Peter Hernon,
E. D. Sherburne, H. P. Sylvester, Thomas Hocking and Alex. Cruick-
shank would organize a strike against the said Jacob McClure and
would prevent the said Wetmore 6 Morse Granite Company of Mont-
192 Volume 5.
6157.
CONSPIRACY.
6157.
pelier aforesaid, from obtaining or employing' any workmen or
laborers in their said shops or works, and by means of said sayings
and threats the said Josiah B. Dyer, Thomas Quintan, Frank Morrill,
Patrick Morrison, Peter Hernon, E. D. Sherburne, H. P. Sylvester,
Thomas Hocking and Alex. Cruickshank did then and there affright,
drive away and prevent the said Jacob McClure from -obtaining and
continuing his employment and labor in the said shops or works of the
said Wetmore 6 Morse Granite Company of Montpelier aforesaid.
And so the said state's attorney, on his oath aforesaid, says that the
said Josiah B. Dyer, Thomas Quinlan, Frank Morrill, Patrick Morri-
son, Peter Hernon, E. D. Sherburne, H. P. Sylvester, Thomas Hocking
and Alex. Cruickshank did then and there, in manner aforesaid, by
threats, intimidation and the unlawful and grievous conspiracy afore-
said, carried into execution as aforesaid, prevent the said Jacob
McClure from obtaining and prosecuting his said employment and
work of stone cutting in the said shops and works of the said Wetmore
6 Morse Granite Company of Montpelier aforesaid, or in any other shop
or works for the manufacture or cutting of granite [contrary to the
form, force and effect of the statute in such case made and provided,
and against the peace and dignity of the state.
J. P. Lamson, State's Attorney.] 1
5. To Obstruct Justice and the Due Administration of Law. 2
1. The words enclosed by [ ] will not
be found in the reported case, but have
been added to render the form com-
plete.
2. For statutes prohibiting conspira-
cies for the commission of any act for
the perversion or obstruction of justice
or the due administration of the law see
as follows:
California. Pen. Code (1897), 182.
Florida. Rev. Stat. (1892), 2593.
Idaho. Rev. Stat. (1887), 6540.
Minnesota. Stat. (1894), 6423.
Mississippi. Anno. Code (1892),
1006.
Missouri. Rev. Stat. (1889), 3780.
Montana. Pen. Code (1895), 320.
Xeiv Jersey. Gen. Stat. (1895), p.
1093, 236.
New-York. Pen. Code, 168 (Birds.
Rev. Stat. (1896), p. 587, i).
North Dakota. Rev. Codes (1895),
7037.
South Dakota. Dak. Comp. Laws
(1887), 6425.
Tennessee. Code (1896), 6693.
Utah. Rev. Stat. (1898), 4156.
For the formal parts of an indictment,
information or criminal complaint in
a particular jurisdiction consult the
titles INDICTMENTS; INFORMATIONS;
CRIMINAL COMPLAINTS.
For other indictments for similar con-
spiracies see as follows:
Defeat of Prohibition Law. An in-
dictment charging that the defendants
" unlawfully and feloniously did con-
spire and confederate together, with the
fraudulent intent to do an illegal act,
injurious to the administration of pub-
lic justice, to wit, did conspire and
confederate together, with the said in-
tent, to defeat the enforcement of the
prohibitory liquor law, so called, in
said county, wrongfully, to wit, with
money and other unlawful means, to
prevent the grand jury of said county
at, etc., from finding and presenting
bills of indictments for violation of said
prohibitory liquor law, in, etc., con-
trary to," etc., was held insufficient, in
failing to state in what manner the
money was to have been used, and in
not specifying the other unlawful
means intended to be employed. State
v. Potter, 28 Iowa 554.
Destruction of Warrant. An indict-
ment for a conspiracy to destroy a war-
rant in the name of the state, issued
against a defendant on a criminal
charge, and a recognizance for the ap-
pearance of said defendant to answer
such charge, with the intent thereby tc
impede the due administration of jus-
5 E. of F. P. 13.
193
Volume 5.
6157.
CONSPIRACY.
6158.
a. By Assaulting a Public Officer.
Form No. 6157.'
(Commencing as in Form No. 6122, and continuing down to *) that
Henry Ripley, John Doe and Samuel Short, being evil-disposed per-
sons, and wickedly devising and intending to do a certain illegal act
injurious to the administration of public justice, to wit, to assault,
beat, abuse, wound and ill treat one Henry K. Baker, in order to hin-
der and prevent him, the said Henry K. Baker, being then and there
one of the justices of the peace within and for the said county of
Penobscot, from the performance and discharge of his duties in his
office aforesaid, on the first day of January, in the year of our Lord
one thousand eight hundred and ninety-seven, at the county aforesaid,
did then and there unlawfully conspire, combine, confederate and
agree together, with the malicious intent, wrongfully and wickedly to
do a certain illegal act, injurious to the administration of public jus-
tice, to wit, to assault, beat, abuse, wound and ill treat the said
Henry K. Baker, in order to hinder and prevent him, the said Henry
K. Baker, being then and there one of the justices of the peace
within and for the said county of Penobscot, from the performance
and discharge of his duties in his office aforesaid, contrary to (con-
cluding as in Form No. 6122).
b. By Giving False Evidence and Suppressing Facts on Trial. 2
tice, should positively aver the facts
that such warrant did issue, and such
a recognizance was acknowledged, and
should also set forth so much of the
warrant and recognizance as is neces-
sary to show that they were valid, and
therefore the destruction of them might
be prejudicial to the administration of
justice. Hence if the warrant and
recognizance be mentioned only by
way of reference and recital, and it be
not stated with any precision by whom
the warrant was issued, nor before
whom the recognizance was taken,
and if the substance of the warrant
and recognizance be not set forth, so
that it may be seen whether they or
either of them had legal validity, the
indictment will be insufficient. State
v. Enloe, 4 Dev. & B. L. (20 N. Car.)
373-.
Violation of Election Laws. An in-
dictment under section 191 of the New
Jersey Crimes act as amended (Rev.
Sup., p. 199, 43), charging the defend-
ants with conspiracy to pervert and ob-
struct the administration of the election
laws by doing certain acts with intent to
influence the result of a certain election,
was held to sufficiently show a crime
within the provisions of that section.
Moschell v. State, 53 N. J. L. 498.
For substance of an indictment for a
conspiracy to procure false and fraudu-
lent votes to be cast see Com. v. Eng-
lish, ii Phila. (Pa.) 439.
1. This form is substantially the in-
dictment in State v. Ripley, 31 Me. 386,
which was objected to, among other
things, because it did not aver that the
said Baker was a magistrate duly quali-
fied to administer justice, nor that he
was in the act of administering justice
and performing his duties as magis-
trate, nor that he had performed or con-
templated or undertaken to perform any
act by virtue of his office; and be-
cause it did not set forth how the said
acts would affect the administration of
public justice. The court held the in-
dictment good, saying, "If they (the
defendants) designed to commit the as-
sault and battery, and unlawfully con-
federated for that purpose, with the
belief that it would hinder the admin-
istration of public justice, but it was
not known or comprehended precisely
in what mode the object would be at-
tained, the crime would be sufficiently
charged."
2. For other forms of indictments and
informations for similar conspiracies
see as follows:
Indictment for conspiracy to induce
194
Volume 5.
6158. CONSPIRACY. 6158.
Form No. 6158.
(Precedent in 5 Cox C. C. Appendix ix.)
Central Criminal Court, to wit. The jurors of our Lady the
Queen upon their oath present, that before the commission of the
offense by William Coes and Richard Goes, hereinafter mentioned to
have been committed by them, one Fred Saunders had been charged
before John Tunis, Esq., one of the magistrates of ihe police courts of
the metropolis, sitting at the police court, Greenwich, in the county
of Kent, and within the metropolitan police district, on suspicion of
having committed a felony, to wit, of having feloniously broken and
entered the dwelling-house of one John Martin, and stolen therein
divers goods, chattels and moneys of the said John Martin. And the
jurors aforesaid, upon their oath aforesaid, do further present, that
at the time of the commission of the offense hereinafter Alleged to
have been committed by the said William Coes and Richard Coes, to
wit, on the 30th day of September, in the year of our Lord i850,
at the parish of Greenwich, in the county of Kent, they the said
William Coes and Richard Coes knew and were acquainted with divers
matters, facts, circumstances and things material to be inquired into
by the said John Tunis, as such magistrate as aforesaid, touching
and concerning the said charge and the said subject matter thereof,
all and every of which said matters, facts, circumstances and things
it then and there was the duty of the said William Coes and Richard
Coes to make known and reveal to the said John Tunis as such magis-
trate as aforesaid, and which they the said William Coes and Richard
Coes were then and there required on Her Majesty's behalf by the
said John Tunis, as such magistrate as aforesaid, to make known,
discover, and reveal to him the said John Tunis, as such magistrate
as aforesaid. And the jurors aforesaid, upon their oath aforesaid, do
further present, that the said William Coes, late of the parish of
Greenwich, in the county of Kent, laborer, and Richard Coes, late of
the same place, laborer, being evil-disposed persons, and contriving
and intending as much as in them lay to prevent the due course of
law and justice, and not regarding their said duty in that behalf, on
the 30th day of September, in the year aforesaid, at the parish afore-
said, in the county aforesaid, unlawfully did conspire, combine,
confederate and agree together to deceive the said John Tunis, so
being such magistrate as aforesaid, in the premises, and to withhold
and conceal from the said John Tunis the said matters, facts, circum-
stances, and things, and falsely to represent to the said John Tunis,
so being such magistrate as aforesaid, that they and each of them,
the said William Coes and Richard Coes, were ignorant of all the said
witness to suppress his testimony, on a trial for felony. 2 Cox C. C. Ap-
People v. Chase, 16 Barb. (N. Y.) 495. pendix xlv; Reg. v. Hamp, 6 Cox C.
For information for conspiracy to C. 167.
prevent a witness from testifying. Rex For form of indictment for conspira-
v. Steven ton, 2 East 362. cy to defame certain persons so as to
For indictment for a conspiracy to discredit their evidence on a trial. Reg.
prevent a material witness from giving v. Knot, 7 How. St. Tr. 763.
evidence pursuant to her recognizance
195 Volume 5.
6159. CONSPIRACY. 6159.
several matters, facts, circumstances, and things, and falsely to swear
before the said John Tunis to the effect last aforesaid, and by such false
swearing, and divers deceitful, false, and indirect means, ways, and
methods, to perfect and put into effect the said wicked conspiracy,
combination, confederacy, and agreement, and to procure the said
John Tunis, as such magistrate as aforesaid, to dismiss the said
charge, and mutually to aid and assist one another in perfecting and
putting into execution the said wicked conspiracy, combination, con-
federacy, and agreement, in contempt of our said Lady the Queen,
and her laws, to the evil and pernicious example of all persons in the
like case offending, and against the peace of our said Lady the
Queen, her crown and dignity.
And the jurors aforesaid, upon their oath aforesaid, do further pre-
sent, that the said William Goes on the 30th day of September, in the
year aforesaid, at the parish of Greenwich aforesaid, in the county of
Kent aforesaid, unlawfully did conspire, combine, confederate, and
agree together, and with divers other persons, whose names to the
jurors aforesaid are unknown, wilfully and corruptly to give false
evidence, 1 and wilfully and corruptly to swear to that which was false,
upon the examinations upon oath of them the said William Goes and
Richard Goes, before the sa\d. John Tunis, Esq., then being one of the
magistrates of the police courts of the metropolis, acting at one of
the said courts, to wit, the Greenwich police court, in the county of
Kent, touching and concerning a certain charge then depending
before the said John Tunis, to wit, a charge against one Fred Saunders,
of having feloniously broken and entered a certain dwelling-house of
one John Martin, and stolen therein divers goods, chattels, and
moneys of the said John Martin, to the great and pernicious example
of all others in the like case offending, in contempt of our said Lady
the Queen and her laws, to the manifest perversion of public justice,
and against the peace of our said Lady the Queen, her crown and
dignity.
e. By Unlawfully Obtaining a Decree of Divorce.
Form No. 6159.
(Precedent in Cole v. People, 84 111. 2i7.) 2
[(Commencing as in Form No. 6128, and continuing dmvn
1. In an indictment for a conspiracy legal act, injurious to the administra-
te produce a false certificate in evi- tion of public justice, every offender,
dence, it is not necessary to set forth on conviction, shall be imprisoned in
that the defendants knew at the time of the state penitentiary, etc. In sus-
the conspiracy that the contents of the taining the indictment the court said:
certificate were false; it is sufficient that "It is suggested in argument that
for such purpose they agreed to certify the statute under which defendants
the fact as true, without knowing that were indicted was copied from the
it was so. Rex v. Mawbey, 6 T. R. 619. Criminal Code of Iowa, and prior to
2. This indictment was drawn under its adoption by our legislature it had
Illinois Rev. Stat. (1874), Crim. Code, received a construction by the supreme
46, providing that if two or more court of that state, holding that an in-
persons conspire and agree together, dictment under this statute must speci-
with the fraudulent or malicious intent fically set forth the illegal acts which
wrongfully and wilfully to do any il- constitute the offense, and that general
196 Volume 5.
6 1 60. CONSPIRACY. 6 1 60.
1 unlawfully, feloniously, wilfully and fraudulently did conspire
and agree together, with the fraudulent intent wrongfully and
wickedly to injure the administration of public justice, by then and
there unlawfully, wilfully and fraudulently attempting to obtain
and procure a decree of divorce [in the Superior Courtof Cook county
aforesaid, contrary to (concluding as in Form No. 6128).'] 1
d. By Unlawfully Taking Intoxicating Liquors Held under Lawful
Seizure.
Form No. 6160.
(Precedent in State v. Harris, 38 Iowa 243.)'
{District Court of the County of Polk.
State of Iowa }
against
William J. Harris and Mark W. Folsom. )
The grand jury of the county of Polk, in the name and by the au-
thority of the state of Iowa, accuse] William J. Harris and Mark W.
Folsom of the crime of conspiracy, committed as follows:
The said William J. Harris and Mark W. Folsom, on the 27th day
of March, A. D. i877, in the county of Polk aforesaid, well knowing
that a certain eight barrels of intoxicating liquors were then lawfully
in the custody and control of one W. W. Moore, as deputy marshal,
of the city of Des Moines, in said county, under and by virtue of a
seizure thereof, made on a search warrant legally issued by G. B.
Hammer, a justice of the peace for Lee township in said county, on
written information made on oath in due form of law, under the pro-
visions of an act of the General Assembly of the State of Iowa, en-
titled "An act for the suppression of intemperance, passed January
22d, 1855," by one James Wright, that he had reason to believe, and
did believe that said intoxicating liquors were then owned and kept,
in a place described, in said county, by one McCracken with intent to sell
the same within the state otlowa in violation of said act, and that the
said W. W. Moore, as such deputy marshal, then held said eight barrels
of intoxicating liquors in his custody by virtue of said seizure, to await
the final judgment on said information, did then and there unlawfully,
feloniously, wickedly and maliciously conspire and confederate to-
gether, with the fraudulent and malicious intent to injure the ad-
ministration of public justice, by unlawfully getting the said eight
barrels of intoxicating liquors out of the possession and control of
the said W. W. Moore, and secreting the same so that it could not be
averments are not sufficient citing 1. The matter enclosed by and to be
State v. Stevens, 30 Iowa 391; State v. supplied within [ ] will not be found in
Potter, 28 Iowa 554; State v. Jones, 13 the reported case.
Iowa 269. Even under the construe- 2. This indictment was excepted to
tion contended for, we think the illegal on the ground that it charged no offense
act that constitutes the offense is suffi- under the laws of Iowa, the taking of
ciently set forth, viz: that the accused the liquor by the means alleged not
unlawfully, wilfully and fraudulently being illegal, but the court (Miller,
attempted to obtain a divorce in the C. J., dissenting) held otherwise and
superior court." sustained the indictment.
19? Volume 5.
6161. CONSPIRACY. 6161.
disposed of as might be finally adjudged and ordered on the hearing
of said information.
And the said Wm. J. Harris and Mark W. Folsom, with the intent
and for the purpose aforesaid, did then and there unlawfully cause a
writ of replevin to be illegally issued by one William Connor, a jus-
tice of the peace of Des Moines township, in said county, in favor of
the said William J. Harris, for said eight barrels and their contents,
by means of which said writ of replevin, they, the said William J.
Harris and Mark W. Folsom, did get said eight barrels of intoxicating
liquors out of the possession and control of the said W. W. Moore,
and did remove and secrete the same, so that they could not be dis-
posed of under the final judgment of forfeiture rendered by said G.
B. Hammer, as such justice of the peace on said information, nor the
said order issued by said G. B. Hammer, as such justice of the peace
on said judgment of forfeiture for the destruction of said intoxicating
liquors, by reason of which said illegal, fraudulent and malicious acts
of the said William J. Harris andMarA W. Folsom, and of their con-
spiring and confederating together as aforesaid, great injury was
done to the administration of public justice, contrary to the form of
the statute in such cases made and provided, and against the peace
and dignity of the state of Iowa.
[Daniel Webster, District Attorney.] 1
e. By Securing Appointment to Public Office. 8
Form No. 6 i 6 I .
(Precedent in People v. Squire, 20 Abb. N. Cas. (N. Y. Oyer & T. Ct.) 36g.) 3
[Court of General Sessions of the City and County of New York. 4 -
The People of the State of New York
against
Rollin M. Squire and Maurice B. Flynn.
The grand jury of the (Here followed the first fifteen counts of the
indictment)] 5
And the grand jury aforesaid, by this indictment, further accuse
the said Rollin M. Squire and Maurice B. Flynn of the crime of con-
spiracy, committed as follows:
Heretofore, to wit, on the 26th day of December, in the year afore-
said, at the city and county aforesaid, the term of a certain public
officer, to wit, the commissioner of public works of the city of New
York, had then lately before expired, and the mayor of said city was
then about to nominate, and by and with the consent of the said
board of aldermen of the said city of New York, to appoint some
1. The words enclosed by [ ] will not was held sufficient under N. Y. Pen.
be found in the reported case, but have Code, 168 (Birds. Rev. Stat. (1896),
been added to render the form com- p. 587, r).
plete. 4. This indictment was found in the
2. For indictment for a conspiracy to court of oyer and terminer, but this
procure the return of a member of par- court has been abolished and the cap-
liament by the use of bribery see 7 Cox tion made to conform to the present
C. C. Appendix xv. practice.
3. The indictment in this case was in 5. The words enclosed by and to be
twenty-two counts, the form given in supplied within [ ] will not be found
the text being the sixteenth count. It in the reported case.
198 Volume 5.
6161. CONSPIRACY. 6161.
person as such commissioner of public works, for which appointment
as such commissioner of public works, the said Rollin M. Squire was
then and there an applicant and candidate. And the said MauHce
B. Flynn, on the day and in the year aforesaid, was then and there
and for a long time prior thereto had been, and then intended there-
after to continue and remain, engaged and interested iti the business
of procuring, soliciting and executing awards, orders and contracts,
and in the procuring, soliciting and executing of awards, orders and
contracts, let and awarded and to be let and awarded by the head of
the department of public works, to wit, the commissioner of public
works, of the city of New York, for work done and supplied and to
be done and supplied for and on account of the corporation of the
city of New York, the expense, price, and consideration of which
was payable, and was to be payable, from the city treasury, and was
by reason thereof ineligible to the said office of commissioner of
public works, as they, the said Rollin M. Squire, Maurice B. Flynn,
Hubert O. Thompson, and the other evil-disposed persons hereinafter
mentioned, then and there well knew.
Nevertheless, the said Rollin M. Squire and Maurice B. Flynn,
both late of the city and county aforesaid, together with said Hubert
O. Thompson and the said other evil-disposed persons, unlawfully,
wickedly, and corruptly contriving and intending to obstruct, defeat
and pervert the due administration of the law, and to get into their
hands and control the said office of commissioner of public works, for
their own most wicked and corrupt ends and purposes, afterwards, to
wit, on the day and in the year aforesaid, at the city and county
aforesaid, did unlawfully, wickedly and corruptly conspire, combine,
confederate and agree together between and amongst themselves, to
cause and procure him, the said Rollin M. Squire, by and through the
corrupt means and procurement of them, the said Rollin M. Squire,
Maurice B. Flynn, Hubert O. Thompson, and the said other evil-dis-
posed persons, to be nominated by the mayor of the said city of New
York, and by and with the consent of the said board of aldermen of
the said city of New York, to be appointed as such commissioner of
public works, upon a corrupt and wicked understanding and agree-
ment, and with intent that, upon and in the event of the said Rollin
M. Squire being appointed to the said office, he the said Rollin M.
Squire, should transact the business of the said office as the said
Maurice B. Flynn might and should direct, and should and would
make no appointment of any subordinates, clerks or employees of
and pertaining to the business of the said office, without the approval
of the said Maurice B. Flynn, and would and should make such
removals of any and all of such subordinates, clerks and employees
as the said Maurice B. Flynn might and should suggest and request,
and that the said Rollin M. Squire should and would, upon and in the
event of such appointment, grant to the said Maurice B. Flynn the
right and authority to discharge any and all of the functions of
the said office, and should and would permit him, the said Maurice B.
Flynn, to make any and all of the appointments and to perform any
and all of the duties necessarily touching and being incidental to the
administration of the said office.
199 Volume 5.
6162. CONSPIRACY. 6162.
And the said Rollin M. Squire, in pursuance and furtherance of and
according to the said conspiracy, combination, confederacy and
agreement between himself and the said Maurice B. Flynn, Hubert
O. Thompson and the said other evil-disposed persons, as aforesaid,
afterwards, to wit, on the day and in the year aforesaid, in the city
and county aforesaid, did personally appear before the said mayor of
the said city of New York and did make application to the said mayor
to be nominated as such commissioner of public works, in due form of
law; and did then and there cause and procure the said mayor to
duly nominate him, the said Rollin M. Squire, as such commissioner
of public works.
And the said Rollin M. Squire, in the further pursuance and
furtherance of and according to the said conspiracy, combination,
confederacy and agreement as aforesaid, afterwards, to wit, on the
day and in the year aforesaid, at the city and county aforesaid, did
unlawfully, wickedly and corruptly make, sign and subscribe and
deliver to the said Maurice B. Flynn and Hubert O. Thompson, a cer-
tain paper in these words following (Here was set out a copy of the
letter}?- to the manifest perversion and obstruction of the due admin-
istration of the laws, to the pernicious example of all others in like
case offending, against the form of the statute in such case made
and provided, and against the peace of the people of the state of
New York, and their dignity.
{John R. Fellows, District Attorney of the
City and County of New York.^
6. Under Federal Statutes. 3
1. The letter referred to was as follows: more of such persons do any act to
" New York, December 26th, i8<fy. effect the object of the conspiracy, all
Maurice B. Flynn, Esq., the parties to such conspiracy shall be
Dear Sir: In consideration of your liable to a penalty," etc.
securing not less than four County Requisites of Indictment Generally.
Democracy aldermen who shall vote An indictment under this section
for my confirmation as commissioner must charge three things in order to
of public works, in the event that the be sufficient: (i) That the persons
mayor shall send in my name for that named in the indictment did conspire
office, I hereby agree to place my resig- together and enter into an unlawful
nation as commissioner, in case of my agreement and combination, which is
confirmation, in your hands whenever the legal signification of the word con-
you may demand the same, and further, spire as there employed. (2) That
to make no appointment in said office they so conspired together to corn-
without your approval, and to make mit an offense against the laws of the
such removals therein as you may sug- United States. (3) That one or more
gest and request, and to transact the of said parties to said conspiracy did
business of said office as you may direct, some act to effect the object of said
Very truly yours, unlawful combination and agreement.
Rollin M. Squired U. S. v. Martin, 4 Cliff. (U. S.) 156;
2. The words enclosed by [ ] will not U. S. v. Adler, 49 Fed. Rep. 736. See
be found in the reported case. also U. S. v. Nunnemacher, 7 Biss. (U.
3. United States Revised Statutes, S.) in; U. S. v. Goldberg, 7 Biss. (U.
5440, provides that " If two or more S.) 175.
persons conspire, either to commit any 7 he conspiracy must be sufficiently
offense against the United States, or to charged. It cannot be aided by acts
defraud the United States in any man- done by one or more of the conspira-
ner, or for any purpose, and one or tors in furtherance of the object of the
200 Volume 5.
6162.
CONSPIRACY.
6162.
conspiracy. U. S. v. Britton, 108 U. S.
199; U. S. v. Walsh, 5 Dill. (U. S.) 58.
Object of Conspiracy. An indictment
under this section, in order to be good,
must charge that the conspiracy was
to do some act made a crime by the
laws of the United States, and it must
state with such reasonable certainty
the acts intended to be effected by the
conspiracy that it can be seen that the
object of the conspiracy was a crime
against the United States. In re Wolf,
27 Fed. Rep. 606; U. S. v. Watson, 17
Fed. Rep. 145; U. S. v. Gardner, 42
Fed. Rep. 829. But in stating the ob-
ject of the conspiracy the same cer-
tainty and strictness are not required
as in the indictment for the offense
conspired to be committed. U. S. v.
Stevens, 44 Fed. Rep. 132; U. S. v.
Wilson, 60 Fed. Rep. 890.
Averment of Overt Acts. The in-
dictment, to be sufficient, must charge
the execution of some overt act to
effect the object of the conspiracy.
U. S. v. Dennee, 3 Woods (U. S.) 47;
U. S. v. Martin, 4 Cliff. (U. S.) 156;
U. S. v. Nunnemacher, 7 Biss. (U. S.)
in; U. S. v. Goldberg, 7 Biss. (U.
S.) 175; U. S. v. Watson, 17 Fed. Rep.
145; U. S. v. Reichert, 32 Fed. Rep. 142;
U. S. v. Milner, 36 Fed. Rep. 890; U.
S. v. Adler, 49 Fed. Rep. 736; U. S. v.
Benson, 70 Fed. Rep. 591; Dealy v. U.
S., 152 U. S. 539. Compare the dictum
in U. S. v. Gardner, 42 Fed. Rep. 829.
But an indictment under this section
is sufficient if it correctly charges an
unlawful combination and agreement
as actually made, and, in addition, de-
scribes any act by any one of the parties
to the unlawful agreement as an act
intended to be relied on to show the
agreement in operation, although upon
the face of the indictment it does not
appear how the act would tend to
affect the object of the conspiracy. U.
S. v. Donau, n Blatchf. (U. S.) 168;
U. S. v. Sanche, 7 Fed. Rep. 715; U. S.
v. Benson, 70 Fed. Rep. 591. See also
U. S. v. Graff, 14 Blatchf. (U. S.) 381;
U. S. v. Boyden, i Lowell (U. S.) 266; U.
S. v. Dustin, 2 Bond (U. S.) 332.
For examples of averments of overt
acts held insufficient see U. S. v. Mil-
ner, 36 Fed. Rep. 890; U. S. v. Gardner,
42 Fed. Rep. 829.
Any form of language that shows
that some act was done to carry out the
agreement is sufficient; it is not neces-
sary to charge that the overt act was
done " to effect the object of " the con-
spiracy, though this is the language
of the statute. U. S. v. Boyden, i
Lowell (U. S.) 266.
Averment of Time and Place of Overt
Act. The indictment should aver the
time and place of the alleged overt act,
so as to identify the act and show that
it post-dated the conspiracy and was in
fact an act, not a part of the conspiracy,
but done to effect its object. U. S. v.
Milner, 36 Fed. Rep. 890.
Allegation of Means Unnecessary. An
indictment under U. S. Rev. Stat.,
5440, which avers the conspiracy and
then sets out the overt acts done to carry
it into effect, is sufficient, and it is not
necessary to aver the means agreed on
to effect the conspiracy. U. S. v. Den-
nee, 3 Woods (U. S.) 47; U. S. v. Gold-
man, 3 Woods (U. S.) 192; U. S. v.
Dustin, 2 Bond (U. S.) 332; U. S. v.
Gordon, 22 Fed. Rep. 250; U. S. v. Ben-
son, 70 Fed. Rep. 591. Compare U. S.
v. Walsh, 5 Dill. (U. S.) 58.
An indictment for a conspiracy to ob-
struct the mails need not charge that the
overt acts were done feloniously, but it
must charge that they were done know-
ingly, wilfully, or unlawfully; but
where the defendants are charged with
the overt acts of retarding the mail
trains it is not necessary to charge them
with knowing at the time that the trains
carried the mails, and where the in-
dictment charges that the overt acts
consisted in turning switches and over-
turning cars upon the track, etc., such
acts will be presumed illegal, and an
allegation that the acts were not done
in the lawful exercise of the defendant's
rights is unnecessary; nor is the indict-
ment restricted to a single overt act.
U. S. v. Debs, 65 Fed. Rep. 210.
For an indictment for conspiracy to
hinder and prevent a colored person
from the enjoyment of personal secu-
rity, drawn under section 6 of the En-
forcement act of 1870, which act is
substantially incorporated into the U.
S. Rev. Stat. (1878), g 5508, 5509, see
The Ku Klux Conspiracy, vol. 12, p.
938.
For indictment drawn under this sec-
tion for a conspiracy to intimidate a
citizen in the free exercise and enjoy-
ment of his right to proceed by con-
tempt in the federal court against the
defendants for a violation of an injunc-
tion granted by said court restraining
said defendants from interfering with
his title to land, held sufficient, see U.
S. v. Lancaster, 44 Fed. Rep. 885.
201
Volume 5.
6162. CONSPIRACY. 6162.
a. To Cast Away Vessel with Intent to Injure Underwriters.
Form No. 6162.'
In the District Court of the United States of America for the South-
ern District of New York.
Of the October Term in the year of our
Lord eighteen hundred and ninety-seven.
Southern District of New York, set. The grand jurors for the United
States of America, inquiring for the Southern District of New York,
upon their oath present,* that John Doe, Richard Roe and Samuel
Short, all late of the city, county and state of New York, in the South-
ern District of New York, on t\\Q fifth day of June, in the year of our
Lord one thousand eight hundred and ninety-seven, at the said city of
New York,\ did amongst themselves, wilfully and corruptly con-
spire, combine, confederate and agree together, to injure certain
underwriters, hereinafter mentioned, and falsely and fraudulently to
cheat and defraud them of divers large sums of money. And the
jurors aforesaid, upon their oath aforesaid, do further present, that
the said John Doe, Richard Roe and Samuel Short afterwards, to wit,
on the {Here give the date of the policy), in the year aforesaid, at the
city of New York aforesaid, in pursuance of, and according to the
said conspiracy, combination, confederacy and agreement amongst
themselves had as aforesaid, did cause and procure a certain ship
called the "Daniel Webster" and certain goods in and on board the
said ship to be insured by certain underwriters, to wit, by Leonard
A. Ford, Charles Mainjoy and John T. Hadaway, and the said under-
writers then and there severally executed a certain policy of insur-
ance upon the said ship, and upon the said goods so laden on board
the said ship as aforesaid, upon and for a voyage from the port of
New York, to the port of Genoa, in the kingdom of Italy. And the
jurors aforesaid, upon their oath aforesaid, do further present, that
the said John Doe, Richard Roe and Samuel Short afterwards, and
after the said ship sailed from the port of New York aforesaid, upon
the voyage aforesaid, to wit, on the fourth day of August, in the year
aforesaid, in further pursuance of and according to the said con-
spiracy, combination, confederacy and agreement among themselves
had as aforesaid, did remove and unload from on board the said ship,
divers goods insured as aforesaid, of great value, to wit, of the value
of two thousand dollars, before the said ship had reached the port of des-
tination as aforesaid, to wit, at the village of Patchogue, in the county
of Suffolk, in the state of New York. And the jurors aforesaid, upon
An indictment charging in the gen- and consumed the time for conducting
eral language of U. S. Rev. Stat., 5506, the election by putting frivolous inter-
that at a certain election the accused rogations to such voters, and unlaw-
did unlawfully combine and confeder- fully created disorder by pushing and
ate with each other to hinder certain per- doing and saying disorderly and ille-
sons from voting, without setting forth gal things to them, such averments
by what acts and methods the hinder- being themselves too vague and gen-
ing was done, is too vague and general, eral. U. S. z/. Belvin, 46 Fed. Rep. 382.
and the defect is not cured by aver- 1. United States. Rev. Stat. (1878),
ments that the accused hindered the 5364. See U. S. v. Cole, 5 McLean
voters by unlawfully challenging them (U. S.) 513.
202 Volume 5.
6163.
CONSPIRACY.
6163.
their oath aforesaid, do further present, that in further pursuance of
and according to the said conspiracy, combination, confederacy and
agreement amongst themselves had as aforesaid, the said John Doe,
Richard Roe and Samuel Short, afterward, to wit, on the twentieth day
of August, in the year aforesaid, on the high seas, did cut, bore
and make divers holes in the bottom and sides of "the said ship,
with intent thereby to sink, cast away and destroy the said ship, and
the goods in and upon the said ship so laden as aforesaid, and with
intent and design then and there wilfully and maliciously to prejudice
and injure the said several persons who had so underwritten the said
policy of insurance on the said ship, and upon the goods therein and
thereupon laden as aforesaid, to the great damage of the said Leonard
A. Ford, Charles Mainjoy and John T. Hadaway, who had so under-
written the said policy as aforesaid, against the peace and dignity of
the said United States, and contrary to the form of the statute of the
same in such case made and provided.
Daniel Webster, United States Attorney.
b. To Defraud the United States. 1
1. For other forma of indictments un-
der U. S. Rev. Stat. (1878), 5440, see
as follows-
By False Accounts. Where an in-
dictment charges a conspiracy by the
superintendent and assistant superin-
tendent of the construction of a gov-
ernment building to defraud the United
States out of a large sum of money
by "certifying that certain false and
fraudulent accounts and vouchers for
materials furnished for use in the con-
struction of the said" building "and
for labor performed on the said build-
ing were true and correct," without
stating what accounts or vouchers, the
indictment was held bad for uncer-
tainty. U. S. v. Walsh, 5 Dill. (U. S.) 58.
By False Survey. For form of in-
dictment for a conspiracy to defraud
the United States by causing a fraudu-
lent and fictitious survey of lands to
be made pursuant to a contract with
the United States, and fraudulent field
notes of said survey, whereby the sur-
veyor-general was deceived into certi-
fying the amount due the surveyor,
held sufficient, see U. S. v. Benson, 70
Fed. Rep. 591, reversing In re Benson,
58 Fed. Rep. 962. For indictment for
similar conspiracy held insufficient un-
der the above statute see U. S. v.
Reichert, 32 Fed. Rep. 142.
By Fraudulent Disposition of Govern-
ment Property. An indictment charg-
ing that the defendants, one of whom
was an Indian trader, " wickedly de-
vising and intending to cheat and
defraud the United States, fraudulently,
maliciously and unlawfully did con-
spire, combine, confederate and agree
together to cause and procure certain
goods, wares and merchandise to be
embezzled, and disposed of for money,
with the intent thereby to defraud the
United States," and that to carry out
such conspiracy they did certain acts
set forth in the indictment, was ob-
jected to on the ground that there is
no statute of the United States under
which an Indian trader can be indicted
for embezzlement, and hence the in-
dictment did not charge an offense
within the United States statute against
conspiracy. The court held that the
word "embezzled" might be omitted
from the charge and the indictment
was still good for a conspiracy to cheat
and defraud the United States. U. S.
v. Upham, 2 Mont. 170.
By Fraudulently Increasing Weight of
Mails Carried. An indictment charg-
ing that certain railway officials, for the
purpose of deceiving the postal officials
having charge of the weighing of the
mails, and of defrauding the United
States by falsely causing it to appear
that the average weight of mail matter
transported was largely in excess of the
actual average amount usually carried,
and thereby to cause the United States
to pay to the railway company a com-
pensation in excess of the amount
actually earned, did conspire to defraud
the United States by sending over the
line a large quantity of old newspapers,
203
Volume 5.
6163.
CONSPIRACY.
6163.
(1) BY MEANS OF PRETENDED ENTRY OF PUBLIC LANDS. 1
Form No. 6163.
(Precedent in Dealy v. U. S., 152 U. S. 539, 9 Am. Cr. Rep. i6i.) s
[(Commencing as in Form No. 6162, and continuing down to *)] 3 that
on the first day of April, in the year of our Lord one thousand eight
hundred and ninety-one, in the county of Rolette, State of North Da-
kota, and within the jurisdiction of this court, one William W. Allen,
one Michael Dealy, one Edward Laberge, one Peter Thibert, and one
H. H. Fritz, and others to the grand -jury unknown, did commit the
etc., in order to fraudulently increase
the weight of the mails, and setting
forth the overt acts done in pursuance
of the conspiracy, sufficiently charges
an offense under U. S. Rev. Stat.,
5440. It is not necessary to aver that
the contemplated fraud was successful,
or that the matter illegally weighed
was of weight sufficient to entitle the
company to increased compensation, or
that the illegal forwarding was to be
continued after the expiration of the
time fixed for weighing, nor is it re-
quired to state what particular official
was to be deceived. U. S. v. Newton,
48 Fed. Rep. 218.
Fraudulently Securing Pensions. For
an indictment under sections 5440 and
4746 for a conspiracy to defraud the
United States by fraudulently obtaining
a pension for one of the defendants in
the name of a deceased soldier see
U. S. v. Adler, 49 Fed. Rep. 736.
For an indictment for a conspiracy
to defraud the United States by bribing
a member of the board of examining
surgeons, so as to influence him in
making his report to the commissioner
of pensions and thereby secure an
allowance of a pension, and of a larger
pension than would otherwise have
been obtained, see U. S. v. Van Leuven,
62 Fed. Rep. 62.
By Prosecuting a False Claim. U. S.
v. Dennee, 3 Woods (U. S.) 47.
Other statutes relating to conspiracies
to defraud the government are as fol-
lows:
U. S. Rev. Stat. (1878), 5438, which
provides that " Every person who en-
ters into any agreement, combination
or conspiracy to defraud the govern-
ment of the United States, or any de-
partment or officer thereof, by obtaining
or aiding to obtain the payment or al-
lowance of any false or fraudulent
claim, shall be imprisoned," etc.
U. S. Rev. Stat. (1878), 1542, art.
60, par. 3, relating to conspiracies to
defraud the government by persons in
the military service.
U. S. Rev. Stat. (1878), 1624, art.
24, relating to conspiracies to defraud
the government by persons in the
naval service.
U. S. Rev. Stat. (1878), 3169, which
makes it a criminal offense for every
officer or agent appointed and acting
under the authority of any revenue
law of the United States to conspire or
collude with any other person to defraud
the United States.
1. A count in an indictment under
U. S. Rev. Stat. (1878), 5440, charging
a conspiracy to defraud the United
States by presenting to the register
and receiver of a land office for ap-
proval false and fraudulent affidavits
and proofs of settlement and improve-
ment under the pre-emption law of
twenty-eight persons, to the effect that
such persons were entitled to enter the
public lands under the pre-emption
laws and had severally complied with
the said laws, and that they had en-
tered such lands for their own indi-
vidual benefit and not for purposes of
speculation, with an allegation of overt
acts, is sufficient. Also a count charg-
ing a conspiracy to defraud the United
States by hiring twenty-eight persons
to enter certain public lands at the land
office under color of the pre-emption
laws, for the purpose of selling such
lands to the defendant and others on
speculation. U. S. v. Gordon, 22 Fed.
Rep. 250.
2. This is the first count of the indict-
ment, on which the defendants were
found guilty. A motion for a new trial
and one in arrest of judgment was over-
ruled, and this judgment was affirmed
by the United States supreme court.
The indictment is drawn under U. S.
Rev. Stat. (1878), 5440.
3. The matter to be supplied within
[ ] will not be found in the reported
case.
204
Volume 5.
6 1 64. CONSPIRACY. 6 1 64.
crime of conspiracy to defraud the United States, committed as
follows:
That at the time and place aforesaid, the said William W. Allen,
Michael Dealy, Edward Laberge, Peter Thibert, and H. H. Fritz, and
others, to the grand jury unknown, did falsely, unlawfully, and wick-
edly conspire, combine, confederate, and agree together among them-
selves, to defraud the United States out of large tracts of land in
said county of great value, 1 by means of false, feigned, illegal, and
fictitious entries 2 of said lands under the homestead laws of the
United States, the said lands being then and there public lands of the
United States, open to entry under said homestead laws at the local
land office of the United States at Devil's Lake City, in said state, and
that according to and in pursuance of 3 said conspiracy, combination,
confederacy, and agreement among themselves, had as aforesaid, the
said Allen did persuade and induce one Charles Pattnaude to make
filing under said homestead laws, and thereafter to make proof and
final entry under said laws for the lands known and described as fol-
lows: The south half of the northeast quarter and lots one and two
of section six, in township one hundred and sixty-three north, of
range seventy west, of the fifth principal meridian, said lands lying
and being in said county, on which said lands said Pattnaude, as said
Allen then and there well knew, had never made settlement, improve-
ment, or residence, contrary to the form of the statute of the United
States in such case made and provided, and against the peace and
dignity of the United States.
[James F. Smith, United States Attorney.]
(2) BY REMOVING DISTILLED LIQUORS TO EVADE INTERNAL
REVENUE TAX.
Form No. 6164.
(Precedent in U. S. v. Babcock, 3 Dill. (U. S.) 623, note.) 4
United States of America, Eastern District of Missouri, ss.
In the district court of the United States, for the eastern district of
Missouri. At the November term of said court, A. D. i875.
The grand jurors of the United States of America, duly impaneled,
sworn, and charged to inquire in and for the eastern district of Mis-
1. Description of Lands. It was ob- as to include the proceedings as a
jected that there was no specification whole.
of the particular tractor tracts ot which 3. Description of Overt Act. It was
the defendants conspired to defraud the held unnecessary to use the language
United States, but the court held the of the statute that the overt act was
above general description sufficient. done "to effect the object of the con-
2. Description of Means. It was fur- spiracy." Nor was it necessary to
ther objected that the indictment was specifically state the time of the overt
defective in its statement of the means act, or that it was done within the limits
by which the conspiracy was to be car- of the United States.
ried into effect, the word "entry" in 4. This indictment was framed upon
homestead cases having a technical U. S. Rev. Stat. (1878), 5440. For the
meaning, referring simply to the initia- substance of similar indictments see
tion of the proceedings, but the ob- U. S. v. Fehrenback, 2 Woods (U. S.)
jection was not sustained, the court 175; U. S. v. Nunnemacher, 7 Biss.
taking the word in its popular sense so (U. S.) in; U. S. v. Smith, 2 Bond (U.
305 Volume 5.
6 1 64. CONSPIRACY. 6 1 64.
souri, on their oaths present that Orville E. Babcock and John A.
Joyce, late of said district, on the first day of January, in the year of
our Lord one thousand eight hundred and seventy-four, at the said
district, did conspire, combine, confederate, and agree together
among themselves, and with John McDonald, Joseph M. Fitzroy,
Alfred Bevis, Edward B. Fraser, Rudolph W. Ulrici, Louis Teuscher,
John Busby, Gordon B. Bingham, and John W. Bingham, with certain
other persons, to the grand jurors aforesaid unknown, to defraud 1
the United States of the internal revenue tax of seventy cents, then
and there imposed by law upon each and every proof gallon of a
large quantity, to wit, one million proof gallons of distilled spirits, 2
thereafter to be produced at certain distilleries, then and there situ-
ated in the city of St. Louis, within said district, to wit, the distillery
then and there occupied by the said Alfred Bevis and Edward B.
Fraser, and then and there situated at the northeast corner of Barton
street and De Kalb street, in said city of St. Louis, and within said
district; the distillery then and there occupied by the said Rudolph
W. Ulrici, and then and there situated at the southwest corner of
Cedar street and Main street in said city of St. Louis, and within said
district; the distillery then and there occupied by the said Louis
Teuscher, and then and there situated at Nos. 2808, 2810, 2812, 2814
and 2816, inclusive, North Second street, in said city of St. Louis, and
in said district; the distillery then and there occupied by the said
John Busby, and then and there situated at the southwest corner of
Cass, avenue and Eleventh street, in said city of St. Louis, and within
said district; the distillery then and there occupied by said Gordon B.
Bingham z.n& John W. Bingham, and then and there situated at No.
1313 Papin street, in said city of St. Louis, and within said district.
That afterward, to wit, on the fifteenth day of July, in the year of
our Lord one thousand eight hundred and seventy -four, and at the
eastern district of Missouri, the said Alfred Bevis and Edward B.
Fraser, in pursuance of, and in order to effect, the object of said
conspiracy, combination, confederacy, and agreement, so had as
aforesaid, did remove from the said distillery situated as aforesaid at
the northeast corner of Barton street and De Kalb street, in the said
city of St. Louis, to a place other than a distillery warehouse situated
upon and constituting a part of the distillery premises, to wit, to a
S.) 323; U. S. v. Dustin, 2 Bond (U. S.) subject matter of the conspiracy is suffi-
332. ciently described as " the taxes arising
For cases relating to this celebrated from and imposed by law upon certain
conspiracy to defraud the revenue in divers proof gallons and quantities of
St. Louis, in the years 1871-1875, see distilled spirits, distilled in the United
U. S. v. McKee, 3 Dill. (U. S.) 551; U. S. States, then and there situated in a
v. Babcock, 3 Dill. (U. S.) 581; U. S. v. certain bonded warehouse," describing
McDonald, 3 Dill. (U. S.) 543. said warehouse. U. S. v. Boyden, I
1. Intent to Defraud. An indictment Lowell (U. S.) 266. In an indictment for
against a distiller for conspiracy to de- a conspiracy to remove goods without
fraud the United States of the internal paying duty thereon, the goods and
revenue tax need not state, in addition means of effecting the conspiracy may
to an intent to defraud, the facts show- be described in very general terms,
ing such intent. U. S. v. Ulrici, 3 Dill. Reg. v. Blake, 6 Q. B. 126, 51 E. C.
(U. S.) 532. L. 126; Reg. v. Thompson, 16 Q. B.
2. Description of Goods Removed. The 832.
206 Volume 5.
6165. CONSPIRACY. 6165.
place to the jurors aforesaid unknown, a large quantity of spirits, to
wit, ten thousand proof gallons thereof, upon which said spirits the
internal revenue tax of seventy cents, then and there imposed by law
upon each and every proof gallon thereof, had not been first paid,
and thereby did then and there defraud the United States of said
tax {Here followed in precisely similar terms charges of similar oi'ert acts
by Ulrici, Teuscher, Busby, and Bingham respectively).
That afterward, to wit, on the first day of February, in the year of
our Lord one thousand eight hundred and seventy-four, at the said
eastern district of Missouri, the said John A. Joyce, in pursuance of,
and in order to effect, the object of said conspiracy, combination,
confederacy, and agreement, so had as aforesaid, did aid and abet in
the removal from the said distillery of Alfred Bevis and Edward B.
Fraser, to a place to the jurors aforesaid unknown, of a large quan-
tity of distilled spirits, to wit, one thousand proof gallons thereof,
upon each and every proof gallon of which said spirits the internal
revenue tax of seventy cents, then and there imposed by law, had
not first been paid, contrary to the form of the statute of the United
States in such cases made and provided, and against their peace and
dignity.
David P. Dyer,
United States Attorney for the Eastern District of Missouri.
e. To Make Fictitious Census Returns.
Form No. 6165.
(Precedent in U. S. v . Stevens, 44 Fed. Rep. 132. )*
District of Minnesota, ss.
The grand jury of the United States of America within and for said
district, on their oath present that heretofore, to wit, on the second
day of June, in the year of our Lord one thousand eight hundred and
ninety, at the city of Minneapolis, in this district, Edward A. Stevens,
Thaddeus S. Dickey, Louis E. Strum, and other persons to the grand
jurors aforesaid unknown, meditated and devised a scheme to procure
false, exaggerated and fictitious schedules and returns of the popula-
tion of said city on the first day of June, in the year of our Lord one
thousand eight hundred and ninety, to be made and forwarded to the
1. This indictment, based on U. S. blank schedule. The third charged a
Rev. Stat. (1878), 5440, was demurred conspiracy to write one set of such
to on the ground that the defendants names on one schedule and the other
Stevens and Dickey, not being capable on another, and the fourth charged a
of committing the offense denounced conspiracy to write three hundred ficti-
in section 13 of the Census act of 1889, tious names on fifty such schedules and
which could be committed by Strum three hundred more names on fifty
only, could not conspire with the latter other schedules. Several of said three
to commit said offense, but the court hundred names in the first instance
overruled the demurrer, the gravamen were stated as fictitious. It was ob-
of the charge being the conspiracy. jected to this count that the charge of a
The indictment contained three other conspiracy to put three hundred false
counts, all similar to the above, except and fictitious names in the blanks was
that the second charged a conspiracy to too general, but the averments were
write different fictitious names in the held sufficient.
207 Volume 5.
6165. CONSPIRACY. 6165.
supervisor of the second census district of Minnesota by the several
enumerators employed, and to be employed, to take the eleventh cen-
sus of the United States within said city. That on the second day of
June one Edward J. Davenport was one of the supervisors of census,
to wit, the supervisor of census within and for the second super-
visor's district of Minnesota, duly appointed, qualified, and acting as
such, under and pursuant to the provisions of an act of congress of
the United States, to wit, an act entitled " An Act to provide for
Taking the Eleventh and Subsequent Censuses," approved March
first, A. D. one thousand eight hundred and eighty-nine, and one
Louis E. Strum was an enumerator duly employed, appointed, and
qualified, and acting as such, under and pursuant to the provisions
of said act, within and fora certain subdivision of and within said cen-
sus district, to wit, subdivision number 367; he, the said Louts E.
Strum, lately before then, to wit, on said second day of June, having
taken and subscribed the oath required by [section eight] of said act.
That the said Louis E. Strum on said second day of June had in his
custody and possession, as such enumerator, divers, to wit, three
hundred blank schedules of the form approved by the secretary of
the interior to be filled in the course of the enumeration to be by
him made, according to the provisions of said act, and being the
same blank schedules that had been issued, pursuant to the pro-
visions of said act, from the census office, and to him, the said Louis
E. Strum, before then, lately, to wit, on said second day of June, trans-
mitted and delivered by said supervisor of census.
And the grand jurors aforesaid, upon their oath aforesaid, do
further present that afterwards, to wit, on the said second day of
June, in the year of our Lord one thousand eight hundred and
ninety, at the city of Minneapolis, in this district, the said Davenport
still being and acting as the supervisor of census within and for said
census district, and the said Louis E. Strum still being and acting as
an enumerator within and for his said subdivision, and still having in
his custody and possession as such enumerator the said blank original
schedules, the same being of the kind and form known as " Schedule
No. 1," and relating to and containing inquiries touching and con-
cerning population and social statistics, Edward A. Stevens, Thaddeus
S. Dickey, and the said Louis E. Strum, yeomen, late of said city,
together with other evil-disposed persons whose names are as yet to
the jurors aforesaid unknown, did unlawfully and maliciously con-
spire, combine, and confederate together and with each other, in and
upon one of said schedules then and there unlawfully, wilfully and
knowingly to put, place, insert, and write the following imaginary,
false and fictitious names of persons, that is to say: Gordon Douglas,
Grace Douglas, David Douglas {and six others'), in the several blanks
left and provided thereon for the names of persons respectively to be
enumerated thereon, pursuant to the provisions of said act, and
imaginary, false, pretended, and fictitious answers, items of informa-
tion, particulars, facts, and statistics in the several blanks left and
provided in said blank schedules for answers to the several inquiries
respectively set forth and contained therein concerning the persons
to be enumerated thereon; and required by said act to be answered
208 Volume 5.
6 1 65. CONSPIRACY. 61 65.
in and upon said schedule, and the same schedute afterwards, to wit,
on said day, with said names and said imaginary, false, pretended,
and fictitious answers, items of information, particulars, facts, and
statistics, put, placed, inserted, and written therein, in manner and
form aforesaid, to wilfully and knowingly duly certify, and have
and procure to be duly certified, in form of law, by" him, the said
Louis E. Strum, as enumerator, as aforesaid, within and for said sub-
division, and the same schedule filed and certified as aforesaid after-
wards, to wit, at said city of Minneapolis, on said day, to unlawfully,
knowingly, and wilfully forward, with other like schedules, to the
said supervisor as his, the said Louis E. Strum's, returns under the
provisions of said act, they, the said Edward A. Stevens, Thaddeus S.
Dickey, and Louis E. Strum, then and there, to wit, when they con-
spired, combined, and confederated together as aforesaid, well know-
ing that the said names, answers, items of information, particulars,
facts, and statistics, and each and every one of them, were imaginary,
pretended, false, and fictitious, and that none of said imaginary,
pretended, and fictitious persons were, on the first day of June, in
the year of our Lord one thousand eight hundred and ninety, or ever,
residents or inhabitants of his, the said Louis E. Strum s, said subdi-
vision ; and he, the said Louis E. Strum, not having obtained said
names, answers, items of information, particulars, facts, and statis-
tics, or any or either of them, by any inquiry made by him, the said
Louis E. Strum, of any one, nor by visit by him, the said Louis E.
Strum, personally to any dwelling-house or family in his said subdi-
vision, nor in the course of enumeration or canvass by him, the said
Louis E. Strum, of his said subdivision, as they, the said Edward A.
Stevens, Thaddeus S. Dickey, and Louis E. Strum, then and there well
knew.
That afterwards, to wit, on the said second day of June, in the year
of our Lord one thousand eight hundred and ninety, at the city of
Minneapolis, in said district, pursuant to said conspiracy, and to pro-
mote and effect the object thereof, the said Louis E. Strum, he, the said
Louis E. Strum, still being and acting then and there as enumerator
as aforesaid, within and for his said subdivision, and still having in his
custody and possession, as such enumerator, the said schedules, and
the said Davenport still being and acting then and there as supervisor
of census within and for said second census district, in and upon one of
said blank schedules, to wit, the blank schedule last hereinbefore men-
tioned, did then and there unlawfully, wilfully and knowingly put,
place, insert and write the several imaginary, false and fictitious names
aforesaid, in the several blanks left and provided thereon for the names
of persons respectively to be enumerated thereon, pursuant to the pro-
visions of said act, and divers imaginary, false, pretended and fictitious
answers, items of information, particulars, facts and statistics in the
several blanks left and provided in said blank schedule for answers to
the several inquiries respectively set forth and contained therein con-
cerning the persons to be enumerated thereon and required by said act
to be answered in and upon said schedule. * * * And so the grand
jurors aforesaid, upon their oath aforesaid, do say that the said
Edward A. Stevens, Thaddeus S. Dickey and Louis E. Strum, then and
5 E. of F. P. 14. 209 Volume 5.
6166. CONSPIRACY. 6167.
there, to wit, at the said city of Minneapolis, on the said second day of
June, in the year of our Lord one thousand eight hundred and ninety,
unlawfully and maliciously did conspire, combine and confederate
together and with each other to unlawfully, wilfully and knowingly
make the fictitious returns aforesaid, in manner and form aforesaid,
contrary to the form of the statute in such case made and provided,
and against the peace and dignity of the United States.
Geo. N. Baxter, Special Assist. U. S. Attorney.
d. To Plunder a Wrecked Steamboat.
Form No. 6166.
(Precedent in U. S. v. Sanche, 7 Fed. Rep. 716.)'
[(Commencing as in Form No. 6162, and continuing down to f)] 2 did
conspire, combine, confederate, and agree together, between and
among themselves, to plunder certain goods and merchandise, a more
particular description of which said goods and merchandise being to
the grand jurors aforesaid unknown, then and there belonging to the
steamboat "City of Vicksburg," the said steamboat being then and
there wrecked in distress on the waters of the Mississippi river,
within the admiralty and maritime jurisdiction of the United States,
while engaged in commerce and navigation on the said river, to wit,
between Vicksburg, in the state Mississippi, and St. Louis, in the state
of Missouri; and that, to effect the object of the said conspiracy, the
said Hercules Sanche then and there furnished and loaned to the said
John Woods and Elias Boatright, a certain skiff to be used by them,
the said Woods and the said Boatright, in plundering said goods and
merchandise from the said steamboat [against the peace {concluding as
in Form No. 6162).] z
e. To Prevent Enjoyment of Elective Franchise and Civil Rights of
Citizens.
(1) BY PREVENTING HOMESTEAD ENTRY.
Form No. 6i67. 3
(Commencing as in Form No. 6162, and continuing down to *) that
Burrell Lindsey, a citizen of the United States, made on the thirtieth
day of December, in the year of our Lord one thousand eight hundred
1. This indictment was drawn under overt act was insufficient to show an
U. S. Rev. Stat. (1878), 5440, for a con- act done to effect the object of the
spiracy tocommit the offense denounced conspiracy. The motion was overruled
by U. S. Rev. Stat. (1878), 5358, and on both points.
the defendants moved to quash it on 2. The words enclosed by and to be
two grounds, the first, that section supplied within the [ ] will not be found
5440 does not make it indictable to con- in the reported case,
spire to commit a trespass against pri- 3. This indictment, drawn under U.
vate persons or property, although such S. Rev. Stat. (1878), 5508, contains
trespass may be a violation of the substantially the facts set out in the in-
criminal laws of the United States; formation in U. S. v. Waddell, 112 U.
the second, that the averment of the S. 76, which information was held on
210 Volume 5.
6168. CONSPIRACY. 6168.
and eighty-two, at the United States land office at Little Rock, a home-
stead entry on a quarter section of land subject to entry at that place.
That afterward, to wit, on the tenth day of January, in the year of our
Lord one thousand eight hundred and eighty-three, while resid-
ing on and cultivating said land for the purpose of- perfecting his
right to the same under the laws of the United States on the subject,
namely, sections twenty-two hundred and eighty-nine, twenty-two
hundred and ninety, and twenty-two hundred and ninety-one of the
Revised Statutes of the United States, the defendants, David Waddell,
John Smith and Frank Johnson conspired to injure and oppress him,
and to intimidate and threaten him in the free exercise and enjoy-
ment of that right, and because of his having exercised it, and pre-
vent his compliance with the laws. And the jurors aforesaid, upon
their oath aforesaid, do further present that in pursuance of said
conspiracy, the defendants, David Waddell, John Smith and Frank
Johnson did, upon said homestead tract, to wit, on said tenth day of
January in the year of our Lord one thousand eight hundred and
eighty-three, with force and arms fire off loaded guns and pistols in
the cabin of said Lindsey and did then and there thereby drive him,
said Lindsey, from his home on said homestead entry. And the jurors
aforesaid on their oath aforesaid, do further present, that said de-
fendants, David Waddell, John Smith and Frank Johnson, to wit, on
said tenth day of January, in the year of our Lord one thousand eight
hundred and eighty-three, went in disguise upon the premises of said
homestead entry, while occupied by said Lindsey, with intent to pre-
vent and hinder the free exercise of and enjoyment by him of the
right and privilege to make said homestead entry on the lands of
the United States, secured to him by the constitution and laws of
the United States and the right to cultivate and improve said land
and mature his title as provided by the said sections twenty-two hun-
dred and eighty-nine, twenty-two hundred and ninety, and twenty-
two hundred and ninety-one of the Revised Statutes of the United
States, against the peace (concluding as in Form No. 6162).
(2) BY PREVENTING EXERCISE OF RIGHT OF SUFFRAGE.
Form No. 6168.
(Precedent in Ex p. Yarbrough, no U. S. 655.)'
We, the grand jurors of the United States, chosen, selected and
sworn in and for the Northern District of Georgia, upon our oaths,
present: That heretofore, to wit, on the twenty-fifth day of July, in
the year of our Lord one thousand eight hundred and eighty-three,
Jasper Yarbrough, James Yarbrough, Dilmus Yarbrough, Neal Far-
demurrer to charge an offense under 1. This indictment, drawn under U.
the said section of the United States S. Rev. Stat. (1878), 5508, 5520, was
statutes. held sufficient.
See also an insufficient indictment For other forms drawn under these
under this statute for a conspiracy to sections see U. S. v. Crosby, i Hughes
interfere with one's enjoyment of a (U. S.)448; U. S. v. Butler, i Hughes
mining claim in U. S. v. Ringeling, 8 (U. S.)457; U. S. v. Goldman, 3 Woods
Mont. 353. (U. S.) 187.
211 Volume 5.
6168. CONSPIRACY. 6168.
brough, Lffvel Streetman, Bold Emory, State Lemmons, Jake Hayes,
and E. H. Green, all late of said Northern District of Georgia, did,
within the said Northern District of Georgia, and within the jurisdic-
tion of this court, commit the offense of conspiracy, for that the
said Jasper Yarbrough, James Yarbrough, Dilmus Yarbrough, Neal
Yarbrough, Lovel Streetman, Bold Emory, State Lemmons, Jake Hayes,
and E. H. Green, did then and there, at the time and place afore-
said, combine, conspire, and confederate together, by force, to
injure, oppress, threaten, and intimidate Berry Saunders, a person
of color and a citizen 1 of the United States of America of African
descent, on account of his race, color, and previous condition of
servitude, in the full exercise and enjoyment of the right and privi-
lege of suffrage in the election of a lawfully qualified person as a
member of the congress of the United States of America, and
because the said Berry Saunders had so exercised the same, and on
account of such exercise, which said right and privilege was secured
to the said Berry Saunders by the constitution and laws of the United
States of America, the said Berry Saunders being then and there
lawfully entitled to vote in said election, and having so then and
there conspired the said Jasper Yarbrough, James Yarbrough, Dilmus
Yarbrough, Neal Yarbrough, Lovel Streetman, Bold Emory, State
Lemmons, Jake Hayes, and E. H. Green did unlawfully, feloniously,
and wilfully beat, bruise, wound, and maltreat the said Berry Saun-
ders, contrary to the form of the statute in such case made and pro-
vided, and against the peace and dignity of the United States of
America.
Second count. And the jurors aforesaid, upon their oaths afore-
said, do further present, that heretofore, to wit, on the twenty-fifth
day of July, in the year of our Lord one thousand eight hundred and
eighty-three, Jasper Yarbrough, James Yarbrough, Dilmus Yarbrough,
Neal Yarbrough, Lovel Streetman, Bold Emory, State Lemmons, Jake
Hayes, and E. H. Green, all late of said Northern District of Georgia,
within the said Northern District of Georgia and within the jurisdic-
tion of this court, did commit the offense of conspiracy, for that the
said Jasper Yarbrough, James Yarbrough, Dilmus Yarbrough, Neal
Yarbrough, Lovel Streetman, Bold Emory, State Lemmons, Jake Hayes,
and E. H. Green, having then and there conspired together, by force,
to injure, oppress, threaten, and intimidate Berry Saunders, a person
of color and a citizen of the United States of America of African
descent, on account of his race, color, and previous condition of
servitude, did then and there unlawfully, wilfully, and feloniously go
in disguise on the highway, and on the premises of Berry Saunders,
with the intent to prevent and hinder his free exercise and enjoy-
ment of the right to vote at an election for a lawfully qualified per-
son as a member of the Congress of the United States of America,
which said right had then and there been guaranteed to the said
Berry Saunders by the constitution and laws of the United States of
1. An indictment under U. S. Rev. don that they were officers conspired
Stat. (1878), 5508, 5509, is bad that against in the discharge of their official
does not aver that the parties conspired duties is not sufficient. U. S. v. Pat-
against were citizens, and an allega- rick, 53 Fed. Rep. 356.
212 Volume 5.
6 1 69. CONSPIRACY. 6 1 69.
America, the said Berry Saunders being then and there lawfully
qualified to vote at said election; and having so conspired, with
intent as aforesaid, the said Jasper Yarbrough, James Yarbrough,
Dilmus Yarbrough, Neal Yarbrough, Lovel Sireetman, Bold Emory,
State Lemmons, Jake Hayes, and E. H. Green did then and there
beat, bruise, wound, and maltreat the said Berry Saunders, contrary
to the form of the statute in such case made and provided, and
against the peace and dignity of the United States of America.
Emory Speer, U. S. Atty.
A true bill. Oct. 12th, i883.
J. C. Kirkpatrick, Foreman.
(3) BY PROCURING INSPECTOR OF ELECTIONS TO NEGLECT HIS DUTY.
Form No. 6169.
(Precedent in In re Coy, 127 U. S. 743. /
\(Caption and venue as in Form No. 6162.y\ z
The grand jurors of the United States, within and for the District
of Indiana, impaneled, sworn, and charged in said court, at the term
aforesaid, to inquire for the United States within and for the District
of Indiana aforesaid, upon their oath present that Simeon Coy, Henry
Spaan, John H. Councilman, Charles N. Metcalf, John E. Sullivan,
Albert T. Beck, George W. Budd, Stephen Mattler, William F. A. Bern-
hamer, and John L. Reardon, late of said district, at the district
aforesaid, on the third of November, in the year of our Lord one
thousand eight hundred and eighty-six, unlawfully, knowingly and
feloniously did then and there conspire, confederate, and combine
and agree together, with one Samuel E. Perkins, to commit an
offense against the United States in this, to wit: The grand jurors
aforesaid, impaneled and sworn as aforesaid, do charge and present
that on the 2d day of November, in the year of our Lord one thousand
eight hundred and eighty-six, an election for a Representative in the
Congress of the United States from the Seventh Congressional Dis-
trict of the State of Indiana, was lawfully had and held in and for
said Seventh Congressional District of Indiana; that the county of
Marion in said State, and the city of Indianapolis, situated in said
county, are, and on said 2d day of November, in the year of our Lord
one thousand eight hundred and eighty-six, were in and constituted
parts of said congressional district, and that at said election for Rep-
resentative in Congress, so held in said district and in said county
and city, a Representative in Congress was lawfully voted for at each
and every voting precinct of said district and of said county and
city, including the precincts hereinafter particularly named; that at
said election one Allen Hisey served (as) and was the lawful inspector
of the election at and for the second precinct of the thirteenth ward
of said city of Indianapolis, and at said election said John H. Council-
1. This indictment is drawn under U. indictment in In re Coy, 31 Fed. Rep.
S. Rev. Stat. (1878), 5440, for a con- 794.
spiracy to violate the provisions of U. S. 2. The matter to be supplied within [ ]
Rev. Stat. (1878), 5515. See also the will not be found in the reported case.
213 Volume 5.
6 1 69. CONSPIRACY. 6 1 69.
man served (as) and was the lawful inspector of election at and for
the second precinct of the fourth ward of said city of Indianapolis, and
that at said election said Stephen Mattler served as and was the law-
ful inspector of election at and for the third precinct of the thirteenth
ward of said city of Indianapolis, and that at said election one Lorenz
Schmidt served as and was the lawful inspector of election at and for
the first precinct of the twenty-third ward of said city of Indianapolis,
and one Joel H. Baker served as and was the lawful inspector of
election at and for the sixth precinct of Center township in said
county of Marion, and one Joseph Becker served as and was the law-
ful inspector of election at and for the second precinct of the eleventh
ward of the city of Indianapolis aforesaid, and one Andrew Oehler
served as and was the lawful inspector of election at and for the first
precinct of the seventeenth ward of said city of Indianapolis, and one
John Edwards served as and was the lawful inspector of election at
and for the second precinct of the eighteenth ward of said city of
Indianapolis.
That at and after the close of the election aforesaid, and until
delivery was made to the clerk of said county and to the board of
canvassers of said county, each of said inspectors had in his lawful
possession the ballots, tally papers, poll lists, and certificates of the
board of judges of election of and for the precinct of which he was
and had been inspector as aforesaid; said ballots, poll lists, tally
papers, and certificates each contained evidence in respect to said
election of Representative in Congress, and said grand jurors aforesaid
do charge and present that at said district, on said //></ day of Novem-
ber, in the year of our Lord one thousand eight hundred and eighty-
six, said defendants Simeon Coy, Henry Spaan, John H. Councilman,
Charles N. Metcalf, John E. Sullivan, Albert T. Beck, George W.
Budd, Stephen Mattler, William F. A. Bernhamer and John L. Rear-
don, intending to obtain unlawful possession of said papers and
election returns so in the custody of said inspectors, and feloniously
to mutilate, alter, forge, and change 1 the said poll lists, tally papers,
and certificates of the judges of election, did unlawfully and feloni-
ously conspire, confederate, combine, and agree together, and with
said Samuel E. Perkins, unlawfully and by false and deceitful
speeches, statements, assertions, and promises, and by other unlaw-
ful means to the grand jurors unknown, to counsel, assist, aid, pro-
cure, and induce said Allen Hisey, Lorenz Schmidt, John H. Councilman,
Stephen Mattler, Joel H. Baker, Joseph Becker, Andrew Oehler, and
John Edwards, inspectors as aforesaid, and each of them, unlawfully
to omit, neglect, fail, and refuse to perform the duties imposed by
the laws of the State of Indiana upon them and each of them safely
to guard, keep and preserve from harm and danger the papers, poll
lists, tally papers, and certificates of the judges of election so
deposited with them, the said inspectors, and each of them respec-
tively, until lawfully delivered to the board of canvassers of said
county of Marion, and to the clerk of said county, and that to effect
1. It is not necessary to set out in the designed to affect, or in fact affected,
indictment the precise nature of the al- the result of the election. In re Coy,
terations, nor to aver that they were 31 Fed. Rep. 794.
214 Volume 5.
6 1 69. CONSPIRACY. 6 1 69.
the object of said conspiracy the said Samuel E. Perkins unlawfully
advised, persuaded, and procured the said Allen Hisey, inspector as
aforesaid, unlawfully, and negligently to deliver to him, the said
Samuel E. Perkins, the poll lists, tally papers, and certificates of the
judges of election deposited with him, the said Allen Hisey, for return
to the board of canvassers of said county before the same had been
returned to the said board of canvassers; and said Samuel E. Perkins
and Simeon C^y'unlawfully persuaded, advised, and procured the said
Stephen Mattler unlawfully and negligently to deliver, and he, the said
Stephen Matiler, consented to and did then and there unlawfully and
negligently deliver to said Perkins and Coy the poll lists, tally papers,
and certificate of the board of judges of election deposited with him,
the said Stephen Mattler, for return to the board of canvassers of said
county, before the same had been returned to and canvassed by said
board of canvassers; and the said John E. Sullivan and George IV.
Budd unlawfully received and took from Lorenz Schmidt the poll list,
tally paper and certificate of the board of judges of election depos-
ited with said Lorenz Schmidt as aforesaid for return to the board of
canvassers aforesaid; and the said John H. Councilman, negligently
and in disregard of his duty, parted with and surrendered to a person
or persons, to the grand jurors unknown, the poll list, tally paper
and certificate of the judges of election deposited with him, the said
John H. Councilman, for return to the board of canvassers; and said
Simeon Coy unlawfully received, procured and took from Andrew
Oehler, inspector as aforesaid, the poll list, tally paper and certificate
of the judges of election deposited with him, the said Andrew Oehler,
as aforesaid, to be returned to the board of canvassers of said county;
and the said defendants, Simeon Coy, Henry Spaan, John E. Sullivan,
and others of the defendants, to the grand jurors unknown, advised,
persuaded and procured the said Joel H. Baker unlawfully and
negligently to surrender and deliver to some person or persons, to
the grand jurors unknown, the poll list, tally paper and certificate
of the judges of election deposited with him for return to the said
board of canvassers; and said defendants, Simeon Coy, Henry Spaan,
John E. Sullivan, and other defendants, to the grand jurors unknown,
advised, procured and persuaded said John Edwards, inspector as
aforesaid, to unlawfully and negligently deliver and to surrender to
some person or persons, to the grand jurors as aforesaid unknown,
the poll list, tally paper and certificate of the judges of election
deposited with him, the said John Edwards, as aforesaid to be
returned to the said board of canvassers; and said Simeon Coy, John
H. Councilman, Henry Spaan, Charles N. Metcalf, John E. Sullivan,
Albert T. Beck, George W. Budd, Stephen Mattler, William F. A. Bern-
hamer and John L. Reardon procured the election of said William A.
Bernhamer as chairman of the board of panvassers of said election in
and for said county of Marion, in said State and district, and said
William F. A. Bernhamer, as such chairman, refused to accept the
poll list, tally paper and certificate of the judges of election depos-
ited with said John H. Councilman as inspector as aforesaid, when
first presented by said John H. Councilman to said board of can-
vassers and until the said tally paper and certificate of the judges of
215 Volume 5.
6 1 70. CONSPIRACY, 6170.
election had been unlawfully altered and forged; and further to effect
the object of said conspiracy, said Simeon Coy sent one William H.
Eden to said Joseph Becker, inspector as aforesaid, and to other
inspectors, to the grand jurors unknown, with direction, instruction
and request to said Joseph Becker and other inspectors, respectively,
not forthwith to return and deliver the returns of said election con-
tained in sealed bags to the clerk of the Circuit Court of the county
of Marion aforesaid, but to unlawfully bring the sdme to him, the
said Simeon Coy, the said Simeon Coy, Samuel E. Perkins, Henry
Spaan, Charles ~N. Metcalf, John E. Sullivan, George W, Budd, Albert
T. Beck, John L. Reardon and said persons to the grand jurors
unknown, to whom said tally papers, poll lists and certificates of
judges of election were so unlawfully surrendered and delivered to
said John H. Councilman, John Edwards, Allen Hisey, Lorenz Schmidt,
Andrew Oehler, Stephen Mattler, Joseph Becker and Joel H. Baker,
respectively, as aforesaid, not being then and there officers of said
election, and not being then and there persons authorized by law to
have the possession and custody of said poll lists, tally papers and
certificates of the judges of election aforesaid, contrary to the form
of the statutes of the United States in such case made and provided,
and against the peace and dignity of the United States of America.
Emory B. Sellers,
Attorney for the U. S. for the District of Indiana,
II. CIVIL ACTIONS FOR CONSPIRACY. 1
1. Requisites of Complaint, etc. The (Mass.) 124; Taylors. Bidwell, 65 Cal.
complaint, declaration or petition must 489; Jenner v. Carson, in Ind. 522;
state facts showing a combination or Wellington v. Small, 3 Cush. (Mass.) 145;
confederation on the part of the de- Hay ward v. Draper, 3 Allen (Mass.)
fendants to do an unlawful act by reason 551; Rice v. Coolidge, 121 Mass. 394;
of which the civil rights of the plaintiff Randall v. Hazelton, 12 Allen (Mass.)
were infringed, and an injury to his 414; Bohn Mfg. Co. v. Hollis, 54 Minn.
person, property or business sustained. 233; Jones v. Baker, 7 Cow. (N. Y.) 445;
Schulten v. Bavarian Brewing Co., 96 Hutchins v. Hutchins, 7 Hill (N. Y.)
Ky. 224. But the rule is to allow great 104; Tappan v. Powers, 2 Hall (N. Y.)
latitude in setting out the particular 277; Hoodz>. Palm, 8 Pa. St. 237; Sheple
acts relied upon from which the con- v. Page, 12 Vt. 519; Barber v. Lesiter,
spiracy is to be inferred, even so far as 7 C. B. (N. S.) 184, 97 E. C. L. 182.
to allow the individual acts of the con- And it is necessary to aver in the
spirators to be averred. Mussina v. complaint, in a competent form, that
Clark, 17 Abb. Pr. (N. Y. Supreme Ct.) the consequence of the conspiracy, or
188. the acts done in furtherance thereof, re-
But the gist of the action is not the suited in some damage to the plaintiffs,
conspiracy alleged but the tort commit- Douglass v. Winslow, 52 N. Y. Super,
ted by the defendants, and the damage Ct. 439.
resulting therefrom. To charge all the For the formal parts of a complaint,
defendants, joint action must be proved, petition or declaration in a particular
and the allegation of a conspiracy may jurisdiction consult the title COM-
be a proper mode of alleging it, but for PLAINTS, vol. 4, p. 1019, and DECLA-
any other purpose it is wholly imma- RATIONS.
terial, and it does not change the nature For other forms of declarations, com-
of the action or add anything to its plaints or petitions in civil actions for
legal force and effect. Caring v. Eraser, various conspiracies see as follows:
76 Me. 37, citing Dunlap v. Glidden, 31 To extort money. Hablichtel v.
Me. 438, Parker v. Huntington, 2 Gray Yambert, 75 Iowa 539.
216 Volume 5.
6170.
CONSPIRACY.
6170.
1. Falsely to Accuse Plaintiff of Criminal Offense. 1
To defraud plaintiffs of certain mer-
chandise under color of purchase. Tap-
pan v. Powers, 2 Hall (N. Y.) 277.
To defraud creditor. Penrod v. Mor-
rison, 2 P. & W. (Pa.) 126, 8 S. & R.
(Pa.) 522; Mott v. Danforth, 6 Watts
(Pa.) 304. See 'also Wellington v.
Small, 3 Cush. (Mass.) 145.
By selling plaintiff a sick cow. New-
ton v. Brown, 49 Vt. 16.
By fraudulently inducing plaintiff to
pay certain notes. Sheple v. Page, 12
Vt. 519.
See also the substance of declara-
tions, complaints and petitions for
similar causes of action in the follow-
ing cases: Gardner v. Preston, 2 Day
(Conn.) 205; Spaulding v. Knight, 116
Mass. 148; Hoosac Tunnel Dock, etc.,
Co. v. O'Brien, 137 Mass. 424; O'Con-
nor v. Jefferson, 45 Minn. 162; Jones v.
Morrison, 31 Minn. 140; Verplanck v.
Van Buren, 76 N. Y. 247; Eason v.
Westbrook, 2 Murph. (6 N. Car.) 329.
Conspiracy to Slander. In an action
on the case for a conspiracy to defame
by spreading false statements that the
plaintiff had cheated and defrauded a
third person (the words not being action-
able), and also by composing a libellous
statement to the same effect, it was held
in Pennsylvania that the declaration
need not aver special damage, the
damage being implied. Hood v. Palm,
8 Pa. St. 237.
But in Indiana a demurrer to a com-
plaint alleging that the defendants con-
spired and agreed with each other to
slander and defame the plaintiff by ac-
cusing her of perjury, and that in pur-
suance of such conspiracy one of the
defendants spoke of the plaintiff cer-
tain false and defamatory words, set-
ting them out, was sustained, such a
conspiracy not being the subject of in-
dictment in that state as in Pennsyl-
vania. Severinghaus v. Beckman, 9
Ind. App. 388.
Where the plaintiff in his declaration
averred that he was by profession a
teacher, that the defendants conspired
with their confederates to ruin him in
his profession, and in pursuance and in
execution of their said conspiracy mali-
ciously spoke and published of him, in
his profession as teacher, words, set
forth at length with innuendoes, which
imputed to him the want of integrity
and capacity, mental and moral, fol-
lowed by an averment of special dam-
age, it was held to be error to sustain
a demurrer to the sufficiency of the dec-
laration. Wildee v. McKee, in Pa.
St. 335-
A complaint alleging in substance
that the defendants, maliciously con-
spiring together with intent to injure,
defame and destroy the plaintiff's char-
acter and to deprive her of her means
of support and to force her to leave the
community where she lived, wilfully
maliciously and falsely sued out an in-
quisition of lunacy against her, whereby
she was greatly injured in her reputa-
tion and business as a dressmaker, and
brought into public scandal and dis-
grace, to her damage two thousand dol-
lars, states a good cause of action.
Smith v. Nippert, 76 Wis. 86. See also
Smith v. Nippert, 79 Wis. 135.
1. Conspiring to Have Plaintiff In-
dicted for Perjury. The declaration
need not set out any agreement to do
any act in itself unlawful, or any act
lawful in itself by unlawful means, the
gist of the action not being the con-
spiracy but the damage done the plain-
tiff. Parker v. Huntington, 2 Gray
(Mass.) 124.
Declarations Held Insufficient. A
declaration in two counts, the first
charging that the defendants, devising
and intending unjustly, etc., to extort
money from the plaintiff, falsely, etc.,
conspired to accuse him of being the
father of a bastard, and in pursuance
thereof maliciously threatened to accuse
him thereof and to cause a criminal
prosecution to be commenced against
him therefor, whereby they procured
from the plaintiff a large sum of money;
the second count being like the first, ex-
cept that it charged that the intent of
the defendants was to deprive the plain-
tiff of his good name and subject him
without cause to the punishment pre-
scribed by law for bastardy, and that
they threatened to cause bastardy pro-
ceedings to be carried on against him,
was held fatally defective in that it
failed to state that the charge was false
or that it was known to the defendants
to be false, and did not allege such facts
and circumstances as would constitute
fraud. Wright v. Bourdon, 50 Vt. 494.
For substance of complaint for con-
spiracy to charge plaintiff with arson
held insufficient to state a cause of action
see Taylor v. Bidwell, 65 Cal. 489.
Declarations Held Sufficient. For
217
Volume 5.
6 1 70. CONSPIRACY. 6170.
Form No. 6170.
(Precedent in Caring v. Frazer, 76 Me. 38.)
[(C0mmencement.y\ l In a plea of the case, for that the said plain-
tiff being a good, true and faithful citizen of this state, and having
behaved and conducted herself as such from her nativity to the
present time, and so among her neighbors as well as others was known
and reputed. Yet the said defendants, not ignorant of the premises,
but contriving and maliciously intending to hurt, wound and injure
the plaintiff, and her unjustly to vex, molest and disturb, and to cause
her to suffer punishment and to be fined, and also imprisoned for a
long space of time, and thus to be .deprived of her liberty, and
thereby to impoverish, oppress and wholly ruin her; did at Portland,
in the county of Cumberland and state of Maine, on the second day of
January, A. D. i8&?, maliciously and wickedly conspire, combine,
confederate and agree together amongst themselves to falsely accuse,
and by means of false testimony, to procure the plaintiff to be in-
dicted and convicted of the crime of maintaining a common nuisance,
an indictable offense by the laws of the state of Maine, and punished
by a fine and imprisonment; and did then and there, at the January
term of the Superior Court, within and for the county of Cumberland,
held at Portland, aforesaid, on \he first Tuesday of January, A. D. i8##,
by false, fabricated and perjured testimony, accuse the said plaintiff
of the crime aforesaid before the grand jury of the county aforesaid,
whereby said grand jury returned into said court a certain bill of in-
dictment in words and figures as follows, viz: {Here was set out the
indictment}, which said indictment the court aforesaid caused to be
read, and caused said plaintiff to answer thereto in said court before
a jury of the court aforesaid duly impaneled to try said plaintiff on
said indictment procured as aforesaid, and said plaintiff was put on
her trial on said indictment in said court on the nineteenth day of
January aforesaid, and the said defendants then and there at said
trial before the court and jury aforesaid, gave said false, frabricated
and perjured testimony against said plaintiff and in support of the
allegations contained in said indictment procured as aforesaid; [and
the said plaintiff was in due manner and according to due course of
law by the verdict of said jury acquitted of the said crime charged
in the said indictment, and the said court thereupon ordered that
the said plaintiff be discharged,] 2 as by the records and proceedings
remaining in said court appears.
substance of declaration in action for cause him to be removed from office
conspiracy to falsely charge an unmar- see Griffith v. Ogle, i Binn. (Pa.) 172.
ried woman with being pregnant of a In this case it was held unnecessary to
bastard see Haldeman v. Martin, 10 Pa. aver special damage, as the law implies
St. 369. In this case it was held un- damage from such a conspiracy,
necessary to aver that the reports and See also Skinner v. Gunton, i Saund.
charges were made falsely and mali- 228.
ciously or to set forth the words spoken. 1. For the commencement and con-
For substance of a declaration in an elusion of the declaration in Maine con-
action on the case in the nature of a suit the title DECLARATIONS.
writ of conspiracy charging the defend- 2. The words enclosed by [ ] are sup-
ants with conspiring to falsely accuse a plied in place of an allegation that the
judge with taking illegal fees and to defendant was found guilty, and the
218 Volume 5.
6171. CONSPIRACY. 6171.
By means of the premises aforesaid and the said false, fabricated
and perjured testimony given in said court as aforesaid, the plaintiff
has suffered great anxiety and pain of body and mind, and has been
forced and obliged to lay out and expend divers sums of money in
the whole amounting to a large sum of money, to wit, six hundred
and fifty dollars, in and about defending herself in the^premises, and
has been greatly hindered and prevented by reason of the premises
from transacting her lawful and legal affairs for the space of twenty-
six days, and also by reason and means of the said premises she, the
plaintiff, has been, and is, otherwise greatly injured in credit and
circumstances. To the damage of the said plaintiff (as she says)
the sum of fifteen thousand dollars. [(Conclusion.)] 1
2. To Cheat and Defraud.
Form No. 6171.
(Precedent in Boston v. Simmons, 150 Mass. 461.)*
[The City of Boston } c - c A _
against ( Su ff. olk > Su P- Ct
William A. Simmons and James Wilson. ) Plaintiff ' s Declaration.]'
And the plaintiff says that at the time of the acts and doings here-
inafter set forth it was, and now is, a municipal corporation duly
established by law, in the county of Suffolk, in this Commonwealth,
and was duly authorized by law to purchase land on which to con-
struct a reservoir to be used in supplying said city and its inhabitants
with pure water.
That the defendant Simmons was a member and the chairman of
the Boston Water Board, a board duly established by law, and author-
ized and empowered to purchase for the plaintiff land to be used for
the purpose aforesaid. That said Simmons, by virtue of his said
official position, knew and had a part and share in determining the
action of said Water Board, under said authority, in making such
purchase; that said defendant Wilson well knew of said position,
knowledge, and authority of said Simmons', and that said defendants
corruptly took advantage of said position, knowledge, and authority,
and, intending and contriving to cheat and defraud the plaintiff, did
corruptly and fraudulently conspire and agree with each other that
the said Simmons should impart to said Wilson knowledge of the
doings of the said Water Board in the selection of said land, and of
the piece of land which said board should consider suitable for a site
for said reservoir, did conspire and agree that said Wilson should
become the purchaser and owner of the lot of land which should be
court, on motion and hearing thereon, 1. See supra, note I, p. 218.
set aside the verdict because of the false 2. This declaration was held to dis-
testimony, and thereafter the county close a good cause of action against both
attorney entered a nolle prosequi to the defendants for the injury sustained by
indictment on the records. The court the city.
held that a simple nol. pros, was not 3. The words enclosed by [ ] will not
sufficient to entitle the plaintiff to main- be found in the reported case, but have
tain the action. The declaration has been added to render the form corn-
therefore been changed as above. plete.
219 Volume 5.
6172. CONSPIRACY. 6172.
so considered suitable for a site for said reservoir, did conspire and
agree that said Water Board, acting for the plaintiff, should purchase
the said land for the plaintiff from said Wilson, at an advance or
increase above the price paid therefor by said Wilson, and did so con-
spire and agree to divide the profits of said transaction between
themselves.
And the plaintiff further says, that in consequence and pursuance
of said corrupt and fraudulent conspiracy and agreement, said Sim-
mons did impart to said Wilson said knowledge, and that said Water
Board had considered a certain lot of land suitable for a site for said
reservoir (which said Water Board had in fact done); that said
Wilson did thereupon purchase said lot of land (more particularly
described in a certain deed thereof to the plaintiff, which will be pro-
duced if required), and thereafter said Water Board, acting in behalf
of the plaintiff, being thereto influenced by said Simmons, did pur-
chase said land for said city to pay therefor the sum of '$$91,934, being
in excess over the sum paid therefor by said Wilson, and over the
price at which said Water Board could have purchased the same but
for said corrupt and wrongful agreement and acts of said defendants,
and purchase of said Wilson, by the sum of 50,488. And said
defendants did divide the profits of said fraudulent transaction
between themselves.
And the plaintiff further says, that by said corrupt and fraudulent
conspiracy, agreement, and acts of said defendants, the plaintiff was
unjustly, unlawfully and wrongfully deprived, defrauded, and cheated
of said sum of $50,488.
[A. J. Bailey, for the Plaintiff.] 1
3. To Hinder Trade or Commerce. 2
a. By Boycotting Manufacturer.
Form No. 6172.
(Precedent in Olive v. Van Patten, 7 Tex. Civ. App. 630. ) 3
[The State of Texas, \ District Court,
County of McLennan. ) January Term, A. D. iS94.
To the Honorable Judge of said Court:
The petition of John Olive and Augitst Sternenberg, of Waco, in said
county of McLennan, plaintiffs, against A. Van Patten, John Doe and
Richard Roe, of said city and county, defendants, respectfully
shows:
That at the dates of the transactions hereinafter mentioned, the
1. See supra, note 3, p. 219. Oil Co., 106 N. Y 669, 12 N. E. Rep. 825.
2. For other forms of complaints for To hiss an actor and ruin him in his
conspiracies to interfere with trade, profession. Gregory v. Brunswick, 6
etc., see as follows: M. & G. 205, 46 E. C. L. 205, 6 Scott
To control the coal trade. Murray v. (N. R.) 809.
McGarigle, 69 Wis. 483. To cause minister to lose his posi-
By corporation to destroy business of tion. Fisher v. Schuri, 73 Wis. 370.
rival corporation by inducing customers 3. It was held on the authority of
of latter to cease dealing with him. Delz v. Winfree, 80 Tex. 400, that this
Buffalo Lubricating Oil Co. v. Standard petition stated a good cause of action.
220 Volume 5.
6172. CONSPIRACY. 6172.
plaintiffs were, and still are partners in business, under the firm
name and style of Olive & Sternenberg; and that] 1 on the 16th day of
May, i&88, and for a long time prior thereto, plaintiffs were owners
of a large and extensive sawmill in Hardin county, Tex., capable of
cutting and manufacturing twelve million feet of lumber annually;
of planing mills used in connection with the sawmill; ef six miles of
well equipped tram railway, leading from the mill to their timber
lands, suitable to carry logs to the mill; of 8,000 acres of heavy pine
timber, suitable for the manufacture of lumber, near the mills, from
which the timber had not been cut; and of 7, 000 acres of heavy
timbered land contiguous to the mills, from which only a part of the
timber had been cut, all suitable for first class lumber. The plant
was worth two hundred and seventy thousand dollars; the 8,000 acres
of timbered land worth sixty-four thousand dollars; and the 7,000
acres, fourteen thousand dollars. Of the twelve million feet of lumber,
the annual output plaintiffs were able to make, and were making,
with their mills, and preparing for market, they were able to plane
upon their planing mills annually six million feet of dressed lumber,
and all the lumber manufactured they were able to sell at advan-
tageous prices in the markets of the state and elsewhere, making an
annual profit of $100,000, up to the time of the interference of the
defendants.
That defendants, each being engaged in the lumber business in
Texas, envying the prosperity of plaintiffs and seeking to oppress,
boycott and ruin them and to deter them from selling to actual con-
sumers, and to dissuade and influence dealers in lumber in Texas who
had been in the habit of purchasing lumber from plaintiffs, and
with a view to advance their own pecuniary and selfish interest, on
May 16, 1888, entered into a trust, styled " The Lumber Dealers'
Association of Texas" the object of which was to confederate to-
gether for the purpose of maintaining a high price for lumber against
citizens of the state as consumers, and to conspire against legiti-
mate prices on lumber, and against all persons who sought to reach the
demands of legitimate trade by legitimate methods, and to force, by
such unlawful confederacy and conspiracy, all mill men and manu-
facturers of lumber into such unlawful combination or trust, so that
the lumber business on the part of mill men or manufacturers should
present a solid array against the consumer and retail dealer, and
thus control, by means of such trust, extravagantly high prices for
lumber, for the enrichment of themselves, and to the impoverish-
ment of the consumer and small dealer. And so it is charged that
defendants became guilty of a conspiracy against the public, as well
as plaintiffs, such as is unlawful, in all its acts in furtherance thereof.
That in furtherance of this unlawful design, defendants, as members
of the association, and as chief members thereof, assembled together
about the date mentioned, and adopted and published by-laws for
carrying out its unlawful designs, which by-laws provided as follows:
"Sec. 13. When any manufacturer or wholesale dealer, or his agent
or agents, shall sell to any person not a dealer, excepting railroad
1. The words enclosed by [ ] will not be found in the reported case, but have
been added to render the form complete.
221 Volume 5.
6 1 72. CONSPIRACY. 6172.
companies, and at such points where there are no dealers, such sales
shall be reported to the secretary, and he shall notify the members
of the association, whereupon it shall be the duty of all members of
this association to discontinue their patronage with such manufac-
turer or wholesale dealer: provided, however, that if said manu-
facturer or wholesale dealer shall promise and furnish a guaranty
to the secretary of this association that he will not again sell to any
person not a dealer, notice shall be sent by the secretary to all mem-
bers of the association, when said manufacturer or wholesale dealer
shall again be considered in good repute. Sec. 14. No dealer belong-
ing to this association shall ship to any point where any other mem-
ber may be engaged in the retail trade, at less than the regular price
at that point."
That plaintiffs having incurred the displeasure of said trust, of
which they were not members, because they had seen fit, in the exer-
cise of their rights as citizens, to sell lumber to others than dealers,
or for some other cause unknown to plaintiffs, defendants, pursuant
to the by-laws quoted, did, it is alleged, on or about the 10th day of
September, 1888, unlawfully and maliciously, and with intent to
oppress and ruin petitioners and other mill men of Texas not mem-
bers of their unlawful trust, confederacy, and conspiracy, issue, pro-
mulgate, print, distribute, and mail and deliver, to nearly every
lumber dealer in Texas, and especially to those with whom peti-
tioners had theretofore been dealing and selling lumber to, a circular
in form as follows: {Here was set out a copy of the circular lette?'},
which, when received by such lumber dealers to whom same were
mailed and delivered, had the effect because many of them were
co-conspirators with defendants, and belonging to said organized
conspiracy to cause all of such lumber dealers and sellers of lum-
ber to refuse to make further purchases from your petitioners,
thereby causing a complete cessation of their former prosperous
trade and business from then until the present time, and causing
your petitioners, to prevent their absolute ruin and failure of busi-
ness, to resort to a trade with the consumer, direct, and almost
exclusively. And your petitioners aver that the effect of the
malicious issuance of said circular, and the distribution of same, as
aforesaid, coupled with said trust and conspiracy aforesaid, caused
them damage, in loss of sales of lumber, from the date thereof to
the present time, in the way of net profits arising from such sales,
and affected their business, and retarded same, and the probable and
material effect thereof will result in damages to them and their busi-
ness in the future, which cannot be overcome or prevented by
petitioners, to the extent of one hundred thousand dollars, and in which
sum petitioners have been damaged by defendants, by the wrongful,
wilful and malicious acts of defendants, in the manner and by the
means aforesaid, persisted in and kept up from May 16, 1888, to the
present time, by sundry acts and conduct of defendants, carrying
out the general designs of their unlawful trust, confederacy and
conspiracy.
And by reason of the premises, and by reason of the unlawful
trust, confederacy, and conspiracy, and malicious conduct and acts
222 Volume 5.
6173. CONSPIRACY. 6173.
of the defendants aforesaid, petitioners have been further damaged
in the sura of twenty-five thousand dollars, in addition to their afore-
said damages of $100,000, and which sum of $25,000 they claim as
exemplary damages. Premises considered, your petitioners sue and
pray that defendants be cited, in terms of law, to appear and answer
this petition; and, on a final hearing, petitioners pray. for judgment
against defendants for the sum of one hundred and twenty-five thousand
dollars, their actual and exemplary damages aforesaid, and for
injunction restraining defendants in the further perpetration and
continuation of their wrongful and unlawful acts, and for all costs of
this suit, and for general and special relief; and, as in duty bound,
will ever pray, etc.
[Alexander c Campbell, Plaintiffs' Attorneys.] 1
b. By Extorting Money from Employer by Threatening to Induce
Workmen to Leave his Employ.
Form No. 6173.
(Precedent in Carew v. Rutherford, 106 Mass. 2.)*
[(Caption as in Form No. 6171.)] 1
And the plaintiff says he was carrying on the business of cutting
freestone in said Boston, and employed a great many workmen, and
had entered into contracts with builders to furnish them with such
stone in large quantities; and the defendants, conspiring and con-
federating together to oppress and extort money from the plaintiff,
and pretending that the plaintiff had allowed some of the said
builders, with whom he had made contracts as aforesaid, to withdraw
from the plaintiff's shop a part of the work he had so contracted to
do, and to procure the same to be done by other contractors out of
the state, caused what they called a vote of the Journeymen Free-
stone Cutters' Association of Boston and vicinity (named as defend-
ants in the writ) to be passed at a meeting of said association, and
to be written out upon records of said association, to the effect that
a fine of $500 was levied upon the plaintiff for allowing said builders
to withdraw said work and procure it to be done out of the state as
aforesaid; and the defendants caused said vote to be communicated
and read to the plaintiff, and threatened the plaintiff that unless he
paid to them said fine of 500 they would by the power of said asso-
ciation cause a great number of the workmen employed by the plain-
tiff as aforesaid to leave his premises; and the plaintiff refused to pay
said $500, and the defendant caused a great number, to wit, twelve, of
the workmen employed by the plaintiff as aforesaid to leave his
.service, and said workmen left his service solely for the reason that
1. The words enclosed by and to be settled by the panics without further
supplied within [ ] will not be found trial. In sustaining the exceptions the
in the reported case, but have been court held that the money was illegally
added to render the form complete. demanded from the plaintiff (who was
2. Judgment was rendered on this not a member of the association) and
declaration for the defendants and the that he might recover the same with
plaintiff alleged exceptions, which were damages in an action of tort,
sustained, but the case was afterward
223 Volume 5.
6 1 74. CONSPIRACY. 6 1 74.
he refused to pay said $500 demanded of him as aforesaid, and at the
instigation of the defendants; and the defendants thereafter
threatened the plaintiff that unless he paid to them said fine of 500
they would by the power of said association prevent the plaintiff
from obtaining suitable workmen for the carrying on of his said busi-
ness; and the defendants did prevent the plaintiff from so doing, for
a long time, and until the plaintiff paid to the defendants said fine of
500 on the 26th day of August, 1868- and the plaintiff says the
defendants extorted said sum of 500 from him by means of said
threats, and that he paid the same to the defendants by compulsion
of the defendants, against his will, to avert the injury threatened to
his business as aforesaid.
[. F. Hodges & J. F. Barrett,
Attorneys for the Plaintiff.]
c. By Injuring Credit of Retail Dealer and Preventing his Obtaining
Supplies.
Form No. 6174.
(Precedent in Schulten v. Bavarian Brewing Co., 96 Ky. 225.)'
\Kenton Circuit Court.
Clem. Schulten, plaintiff, "1
against I p -, 2
The Bavarian Brewing Company and f
The John Hauck Brewing Company, defendants. J
The plaintiff Clem. Schulten says, that at the time of the doing of
the wrongs and injuries hereinafter set forth, and for many years
thereafter, the defendant, The Bavarian Braving Company, was a cor-
poration duly organized under the general statute laws of Kentucky,
and the defendant, The John Hauck Brewing Company, was a corpora-
tion duly organized under the statute laws of Ohio, both for the sole
purpose of brewing and selling malt liquors, and were members of a
certain unlawful combination, consisting of all the brewers of the
city of Cincinnati, Ohio, and Covington and Newport, Kentucky, and the
vicinity; all the members whereof were and are in conspiracy with
1. It is not unlawful for wholesale spiracy among cattle dealers to his in-
dealers to protect themselves against jury went further than to charge that
insolvent and dishonest customers, and the defendants refused to sell to him
to compel such customers to pay their and charged that they not only did that
debts to them, and for this purpose and but that they induced a third person to
for the purpose of otherwise assisting do so, and it did not appear from the
each other in their business they may petition that their interference with the
agree among themselves not to deal business of the plaintiff was done to
with such customers, and hence a peti- serve any legitimate purpose of their
tion by a retail dealer setting forth such own, but that it was done wantonly
an agreement made in good faith does and maliciously, and that it caused, as
not state a cause of action for an in- they intended it should, pecuniary loss
jury resulting therefrom to such dealer, to him, the petition alleges a good cause
Schulten v. Bavarian Brewing Co., 96 of action. Delz v. Winfree, 80 Tex. 400.
Ky. 224; Delz v. Winfree, 6 Tex. Civ. 2. The words enclosed by [ ] will not
App. u, 80 Tex. 400. But where a be found in the reported case, but have
petition by a butcher charging a con- been added to render the form complete.
224 Volume 5.
6 1 74. CONSPIRACY, 6 1 74.
each other, and other persons, to the plaintiff unknown, to prevent
the obtaining of any malt liquor by any retail dealer therein, who
might be in debt or alleged to be in debt to any member of said com-
bination, and thereby to injure and destroy his business, and unlaw-
fully compel him to pay such debt or alleged debt, without any judicial
ascertainment or due process of law. And the plaintiff says that at
the same time he was a retail vendor of malt liquors in the city of
Covington, Kentucky, duly licensed as such and carrying on said busi-
ness, as the sole means of subsistence for himself and his wife and
five children, and was therein wholly dependent for his supplies of
such liquors upon the defendants and other members of said com-
bination, and was able, ready and willing to pay for such supplies, and
tendering and offering to purchase the same for cash of the defend-
ants and other members of said combination. Yet on the twenty-
seventh day of November, i &91, the defendants and other members of
the said combination to the plaintiff unknown, intending to injure the
plaintiff and destroy his said business and to prevent his earning a
subsistence for himself or his family, and to unlawfully and oppress-
ively coerce him into paying to the said Bavarian Brewing Company
the sum of one hundred and eighty-four dollars and^/f/Ty cents, then
falsely alleged to be owing by him to it [whereas in truth and in fact
the plaintiff was not indebted to the said defendant in the said sum
nor in any sum whatever], 1 did wrongfully and maliciously combine,
conspire and confederate together so to do, and therein to, and they
then did, wrongfully, falsely, libelously and maliciously write, utter
and publish to each other and to all the members of the said combina-
tion, and others to the plaintiff unknown, that plaintiff was indebted
as aforesaid, and so to prevent, and they did thereby prevent, the
plaintiff from obtaining any supplies of malt liquors, and from carrying
on his said business, and by means of the premises the plaintiff's said
business then was and remains injured and wholly destroyed, to his
damage in the sum of ten thousand dollars. Wherefore he prays judg-
ment for ten thousand dollars damages, and for costs and all proper
relief.
[Jeremiah Mason, Attorney.] 2
1. The petition was held insufficient case in the nature of a conspiracy
in that it did not aver specifically that charging that the defendants combined
the plaintiff was not indebted to the de- to injure the plaintiff's credit, it is
fendant in the sum named. The alle- necessary for the plaintiff to aver, in
gation by inference that the plaintiff his declaration, tbe means by which
was not so indebted, being a mere con- such injury was intended to be effected,
elusion of the plaintiff, is not sufficient. Setzar v. Wilson, 4 Ired. L. (26 N. Car.)
The words in [ ] have been supplied 501.
in accordance with the judgment of the 2. The words enclosed by [ ] will not
court. be found in the reported case, but have
Alleging Means. In an action on the been added to render the form complete.
5 E. of F. P. 15. 225 Volume 5.
CONSTABLES.
See the GENERAL INDEX to this work.
CONTEMPT.
BY FRANCIS X. HENNESSY.
I. PROCEEDINGS AGAINST CONTEMNOR, 228.
1. Preliminary Proceedings, 229.
a. Affidavit, 229.
(1) For Contemptuous Publication, 229.
(2) For Failure to Obey Process or Orders, 231.
(a) Injunction, 231.
aa. Against Board of Aldermen, 231.
bb. To Restrain Operation of Mine, 232.
(b) Judgment, 234.
(<:) Mandamus, 235.
aa. Directed to Canvassers of Elections,
235-
bb. Directed to Judge, 239.
(d} Orders, 240.
aa. For Examination, 240.
(aa) Of Party Before Trial, 2 40.
(bb} In Supplementary Proceed-
ings, 241.
bb. To Pay Money to Receiver, 242.
(<?) Subpoena, 243.
b. Information for Contemptuous Publication, 244.
c. Motion for Attachment for Failure to Obey, 246.
(1) Injunction, 246.
(2) Judgment, 249.
d. Petition for Attachment for Failure to Obey Injunction,
249.
a. Order to Show Cause, 250.
a. For Contemptuous Petition for Rehearing, 250.
b. For Contemptuous Publication, 251.
c. For Failure to Obey, 253.
(1) Order for Examination Before Trial, 254.
(2) Summons, 254.
3. Attachment, 255.
#. Order that Attachment Issue, 255.
b. Attachment Writ, 256.
226 Volume 5.
CONTEMPT.
(1) In General, 256.
(2) For Contempt before Arbitrators, 259.
(3) For Contemptuous Affidavit for Change of Venue,
2 59-
(4) For Contemptuous Publication, 262.
(5) For Failure to Obey, 263.
(a) Injunction, 264.
(b) Mandamus, 265.
(/) Order, 265.
Subpoena, 266.
a#. / Civil Case, 266.
(art) Before Court of Record, 266.
(<W ) Before Justice of Peace, 269.
W. / Criminal Case, 270.
(a#) Before Court, 270.
Before Grand Jury, 270.
Before County Attorney in
Liquor Case, 271.
*r. Before United States Senate, 272.
(<?) Venire, 273.
4. Interrogatories to Contemnor, 273.
a. Order Directing Filing, 273.
& Interrogatories, 275.
(1) y^?r Violating Injunction, 275.
(2) ./'Vr Disobeying Mandamus, 276.
6. Proceedings Connected with Reference, 277.
a. Order of Reference, 277.
. Referee's Report, 278.
6. Order of Conviction, 281.
Contempt in Facie Curice, 282.
Contemptuous Publication, 287.
Failure to Obey, 288.
i) Decree for Payment of Alimony, 288.
) Injunction, 2 go.
)
3) Mandamus, 292.
Report of Referee, 295.
7. Commitment, 298.
a. Jfyr Contempt in Facie Curia, 298.
. ./^r Failure to Obey, 301.
(1) Decree in Chancery, 301.
(2) Injunction, 302.
(3) Order to Pay Money to Receiver, 303.
*. ^y Canal Commissioners, 304.
8. Criminal Prosecution, 305.
II. CONTEMNOR'S DEFENSES AND REMEDIES, 308.
i. Answers, 308.
a. TV .##/<? /f .S/fott/ Gzaj<? ^r Attachment, 308.
. TV Interrogatories, 308.
a. Petition for Revocation of Order of Commitment, 310.
3. Order Discharging from Imprisonment, 311.
227 Volume 5.
6175.
CONTEMPT.
6175.
4. Pardon, 312.
5. Writ of Prohibition Forbidding Commitment, 313.
CROSS-REFERENCES.
See also the titles ANSWERS IN EQUITY, vol. i, p. 854; AT-
TORNEYS, vol. 2, p. 969; and the GENERAL INDEX
to this work.
For matters of Practice, see the title CONTEMPT, 4 ENCYCLO-
PEDIA OF PLEADING AND PRACTICE, p. 764.
I. PROCEEDINGS AGAINST CoNTEMNOR. 1
1. For statutes relating to the subject
of contempt, and the powers of the
courts and method of procedure to
punish the same, see as follows:
Alabama. Civ. Code (1886), g 648-
650, 675, subs. 6, 723, 756, subs. 4,
P 788, 826, 840. Crim. Code (1886),
4066, 4194, 4298, 4694, 4790.
Arizona. Rev. Stat. (1887), 796,
1091, 1092, 1828, 1829, 2142, 2202, 2593.
Arkansas. Sand. & H. Dig. (1894),
684-695.
California. Code Civ. Proc. (1897),
g 128, 177, 178, 183, 906, 910, 1097,
1209-1222, 1460, 1461, 1991-1994.
Colorado. Mills' Anno. Stat. (1891),
g 872, 896, 898, 1312, 1457, 1470, 1495,
2117, 22IO, 2416, 266l, 2662, 2666, 2741,
3510, 3522, 4662, 4669, 4738, 4796, 4815,
4830-4832; Mills' Anno. Code (1896),
149, iSSa, 209, 251, 306, 319, 321-334,
355, 364, 33o, 433-
Connecticut. Gen. Stat. (1888), 91,
526, 843, 1037, 1198, 1270, 1272, 1299,
2016.
District of Columbia. Comp. Stat.
(1894), c. 10, 41, 42, 44, 51, c. 35, 33.
Florida. Rev. Stat. (1892), 975,
976, 1099, 1557. 1791,- 2794, 2795.
Georgia. 2 Code (1895), 4046, 4082,
4207, 4233, 4261, 4267, 5498, subs. 6,
5631.
fdaAo. Rev. Stat. (1887), 3862,
3911, 3912, 3921, 4750-4754, 4989, 5155-
5168, 5433, 5434, 7613,8153.
Illinois. Starr & C. Anno. Stat. (1896),
p. 339, par. 114, p. 348, par. 131, p. 528,
par. 12, 577, par. 24, p. 589, par. 41, p.
592, par. 47, p. 1257, par. n8a, p. 1400,
par. 611, p. 2093, par. 40, p. 2395, par.
15, p. 2462, pars. 161, 162, p 3769, par.
16, P- 3770, par. 23, p. 3819, par. 33.
Indiana. Horner's Stat. (1896),
426, 668, 679, 974, 1005-1014, 1160,
1170, 1272, 1303, 1322, 1354, 1400, 1436,
1649, 1664, 1676, 1790, 1828, 2253, 2255,
2383, 2393, 2394, 2582, 2661, 3169, 5744.
Iowa. Code (1897), 345, 500, 520,
2119, 2128, 2407, 3611, 3739, 3954, 4082,
4171, 4180, 4335, 4372-4376, 4444, 4457,
4460-4470, 5478, 5495.
Kansas. 2 Gen. Stat. (1889), p. 38,
2, p. 40, 10-15, p. 196, 343-347,
p. 461, 16-18.
Kentucky. Bullitt's Civ. Code (1895),
151, 193, 205, 220, 226, 232, 257, 286,
304, 424, 440, 443, 467, 535, 537, 539,
633, 762.
Louisiana. Rev. Laws (1897), 124,
125.
Maine. Rev. Stat. (1883), c. 63, I,
c. 70, 4, c. 77, 2, 78, c. 99, 26, c.
106, 19, c. 107, 29, c. 133, 17.
Maryland. Pub. Gen. Laws (1888),
art. 16, $ 151, art. 26, 4, art. 47, 30,
art. 93, 233-243.
Massachusetts. Pub. Stat. (1882), c.
22, 19, c. 155, 41, c. 156, 45, c. 157,
5. c. 162, 13, c. 169, 5, c. 185, 31,
C. 212, l8, 54.
Michigan. How. Anno. Stat. (1882),
3611, 5670, 6470, 6610, 6766, 7076-
7079, 7235-7233, 7257-7289, 7379, 7484,
7951, 8083, 8115, 8663, 9478.
Minnesota. Stat. (1894), 227, 228,
788, 1074, 4810, 5082-5091, 5117, 5218,
5284, 5328, 5446, 5487, 5494, 5655, 6155-
6171, 7179-7184.
Mississippi. Anno. Code (1892),
283, 310, 506, 641, 2370, 2388, 2680,
2681.
Missouri. Rev. Stat. (1889), 2150,
2151.
Montana. Code Civ. Proc. (1895),
no, 191. 192, 201, 310, 397, 1650-1654,
1730, 1836, 1973, 2170-2183, 2572, 2573,
3309-
Nebraska. Comp. Stat. (1897), 572,
917, 1082, 1265, 1322, 1670, 2473, 3558,
3826, 3854, 4056, 4060, 5787, 5831, 5847,
5931, 6138, 6254, 6266, 6282-6284, 6315,
6459, 6489, 6621.
Nevada. Gen. Stat. (1885), 600,
1719, 2481, 3182, 3269, 3400, 3417, 3482-
228
Volume 5.
6175.
CONTEMPT.
6175.
1. Preliminary Proceedings.
a. Affidavit.
(1) FOR CONTEMPTUOUS PUBLICATION.
Form No. 6175.
(Precedent in Ex p. Barry, 85 Cal. 604.)'
State of California, \
City and County of San Francisco. \
William J. Dixon, being duly sworn, deposes and says that one
Henry Bingham is the defendant in an action wherein the people of
the state of California, upon the relation of Ctiarles J. Swift, is plain-
tiff; that said action is now pending in the superior court of the city
ss.
3495, 3596-3599, 3734, 3786, 3787, 4070,
4100, 4427.
New Hampshire. Pub. Stat. (1891),
c. 207, ii, c. 213, 7, c. 224, 7, c.
239- 2 5, 29.
New Jersey. Gen. Stat. (1895), p. 106,
6 46, p. 384, 69, p. 392, 103, p. 403,
166, p. 1216, 3, p. 1406, 52, p. 1625,
18, 19, p. 1965, 8 38, p. 2303, 342,
P. 2377, 92, p. 2387, 130, p. 2568,
214, p. 2600, 381, 382, p. 3114, 22,
p. 3116, 26.
New Mexico. Comp. Stat. (1884),
gg 2322, 2323; Laws (1897), c. 73, 120,
121, 146, 151.
New York. Birds. Rev. Stat. (1896),
p. 15, 21, pp. 630-637, p. 795, 8-14,
P- 875, 6, p. 1393- 27, subs. 2, p.
2794, 8 7, P- 3077, 79-
North Carolina. Code (1883), 381,
648-656, 1400.
North Dakota. Rev. Codes (1895),
459, 1902, 5410, 5501, 5562, 5573, 5644,
5650, 5935-5954, 6734-6737, 7999, 8370.
Ohio. Bates' Anno. Stat. (1897),
52, 119, 193, 258, 310, 538, 543, 605,
1130, 1720, 1791, 1844, 1912, 2773, 3012,
3684, 5178, 51897, 5252-5256, 5397, 5481,
5549, 5556, 558i, 5593, 5605, 5610, 5639-
5650, 6541, 6542, 6779, 6783, 6906, 7201,
7289.
Oklahoma. Stat. (1893), g 701, 2039,
3099, 3133-3135, 4084, 4150, 4222-4224,
4377, 4392, 4600, 4679, 4846-4848, 4908,
5487, 5569, 6124.
Oregon. Hill's Anno. Laws (1892),
g 171, 310, 406, 521, 525, 633, 650-664,
797, 912, 1262, 1465, 2184, 2185.
Pennsylvania. Bright. Pur. Dig.
(1894), p. 132, 54, p. 382, 1-6, p.
784, 52, p. 1744, 4, p. 1745, 13, 14-
Rhode Island. Gen. Laws (1896), c.
209, 15, 19, c. 211, 8, c. 221, $ 6,
c. 262, 22, c. 274, 37.
South Carolina. Rev. Stat. (1893),
725, 726, 735, 887, 2245, 2291, 2301,
2302, 2306, 2329, 2338, 2343.
South Dakota. Dak. Comp. Laws
(1887), 584, 667, 5022, 5112, 5185,
5251, 5257, 5267, 5268, 5529, 5977, 6118-
6122, 7200, 7538, 7850.
Tennessee. Code (1896), 4033,
5912, 5918-5924, 5937, subs. 9.
Texas. Rev. Stat. (1895), arts. 262,
948, 999, noi, 1161, 1455, 1570.
Utah. Rev. Stat. (1898), 112, 697,
713-716, 1998, 3358-3373, 3474, 3752-
3756, 4534, 4542, 5170.
Vermont. Stat. (1894), g 1005,
1455, 1607. 1610-1612, 2707, 4527.
Virginia. Code (1887), g| 3290,
3428, 3768-3771, 4050, 4051, 4053, 4104,
4200.
Washington. Ballinger's Anno.
Codes & Stat. (1897), 91-94, 355, 2034
2036, 2189, 4696, 4701, 5405, 5445-5447,
5726, 5727, 5798-5811, 6828.
West Virginia. Code (1891), c. 50,
190-192, c. 147, 27-29.
Wisconsin. Sanb. & B. Anno. Stat.
(1889), 102, 103, 720, 1504, 2433, 2434,
2565-2569, 3037, 3477-3497, 3575-3581,
3648, 3726, 3856, 4064-4066, 4096, 4097.
Wyoming. Rev. Stat. (1887),
2600, 2602, 2743, 2829, 2097, 2941, 2953,
3393- 3563, 3590-3598.
United States. Rev. Stat. (1878), g
725, 1070, 4073, 4104, 4973, 4999, 5002,
5005, 5006, 5037.
1. It was held in this case that the
publication set out in the affidavit was
an " unlawful interference with the pro-
ceedings of a court" and was, therefore,
punishable under the provisions of Cal.
Code Civ. Proc. (1897), 1209 subs. 9.
See also statutes cited supra, note I,,
p. 228.
9 Volume 5.
6175. CON TEMP T. 6175.
and county of San Francisco, state of California, and is still undeter-
mined; that said Henry B ing ham did interpose and file a demurrer
to the complaint in said action, which said demurrer was, after full
argument, on the second day of August, i889 } by the said court sustained,
and on said last mentioned day the said plaintiff was given leave to
amend his said complaint within ten days thereafter; that the time
granted said plaintiff by said court to amend his said complaint has
not yet expired; that one fames H. Barry is the editor of a paper
published weekly in the city and county of San Francisco, state of Cali-
fornia, which said paper is called the Weekly Star; that on the third
day of August, i&89, and while said action was then and there pend-
ing in said superior court, said James H. Barry did publish and cause
to be published at the city and county of San Francisco, state of Cali-
fornia, in the said paper, the Weekly Star, the following false, mali-
cious, untrue, libelous, and defamatory matter of and concerning
Honorable F. W. Lawler, judge of the superior court of the said city
and county of San Francisco, state of California: (Here was set out a
copy of the contemptuous publication); x with intent then and there unlaw-
fully to interfere with the proceedings of a court of justice and to
insult the said Francis W. Lawler, Esquire, judge of said court, in
the discharge of the duties of his office, and to expose him. to obloquy
and contempt.
W. J. Dixon.
Subscribed and sworn to before me this ninth day of August, iS89.
George H. Pippy, Deputy County Clerk.
1. The contemptuous publication set out brought against Supervisor Henry
in the affidavit was in the language fol- Bingham, to determine whether he is
lowing, to wit: entitled to the office of supervisor. This
" A Criminal Judge. suit was assigned by the Buckley judge,
We charge Francis IV. Lawler, judge Levy, to the other Buckley judge, Law-
of the superior court of San Francisco, ler (upon which every lawyer in town
with deliberate lying about the law, knew beforehand what Lawler would
deliberate intentional falsification in do, though they could not have fore-
his official capacity, and deliberate in- seen just how he would begin to do it),
t^ntional denial of justice. He is not When the case came up before Lawler
merely a fool, but an impudent rascal; yesterday, Bingham' s attorney ' de-
a criminal on the bench. He ought to murred,' that is, he said the superior
be impeached and removed from office, court had [no] authority to try a case
and disfranchised, indicted and pun- like this. In reply, the complainant's
ished by fine and imprisonment; made attorney showed that the constitution
a convict of. But our criminal ma- expressly provides that the superior
chinery and our legislature are so often court had jurisdiction over all such
elected and used (just as Lawler acts), cases. And this impudent falsifier of
not to punish wrong-doing, but on pur- the law and denier of justice, Francis
pose to protect it, that such a proceed- W. Lawler, allowed the demurrer, abso-
ing is hopeless. If the information lutely giving for a reason that ' although
which we have received is wrong, let the constitution does give the superior
the editors of the Weekly Star be at once court jurisdiction over all such cases,
arrested on a charge of criminal libel, yet this is not all cases, but only one
We invite and defy Lawler to venture case, and therefore this court had no
to defend himself even in a San Fran- jurisdiction over it.'
cisco court by this proceeding. We This seems impossible. But we affirm
shall make the crime of this judge so it to be true, and upon the affirmation
plain that even the wayfaring men, we are deliberately taking the risk of
though fools, shall not err therein. being publicly dishonored unless Judge
The case is this: A suit has been Lawler remains publicly dishonored.
230 Volume 5.
6176. CONTEMPT. 6 1 76.
(2) FOR FAILURE TO OBEY PROCESS OR ORDERS.
(a) Injunction,
aa. AGAINST BOARD OF ALDERMEN.
Form No. 6176.'
John D. Negus "]
against
The City of Brooklyn, The Brooklyn Elevated f
Railway Company and others.
County of Kings, \
City of Brooklyn. \ '
David Bar nett, being duly sworn, says: That I am one of the coun-
sel for the plaintiff in the above entitled action.
The action was commenced by the service of a summons and com-
plaint on the defendants and on the members of the common council
of the city of Brooklyn, on the twenty-seventh day of December last
past, as will more fully appear by the affidavits of service hereto
annexed. 2
On the twenty-sixth day of December last past an injunction order,
with an order to show cause, on the twenty-eighth day of December
last past, why said injunction should not be made perpetual, was
made by the county judge of Kings county 3 and duly served on the
members of the common council of said city, as will more fully
appear by the affidavit of service hereto annexed, and that a copy
of said injunction order so made is also hereto annexed.
That on the return day of said order to show cause the motion
thereon was duly heard before the Hon. Jasper W. Gilbert, one of the
justices of this court, and upon the hearing of said motion the mem-
bers of the said common council appeared by their counsel, Winchester
Britton, Esq., who argued in opposition to said motion in their behalf.
The said justice reserves his decision thereon until this day, when
the said justice rendered the decision of the special term of this
court continuing said injunction order, and thereupon said order was
entered.
That between the hearing of the motion and the decision of the
same, said common council kept adjourning from day to day until
this morning, when by its action, as hereinafter stated, the members
thereof, and hereinafter named, violated the said injunction order.
It is exactly as if the burglar Jimmy summons and complaint in the original
Hope had been discharged by Judge action had been served on the city of
Toohy without trial on the ground that Brooklyn and that there was no formal
the ' law only provided for the trying of proof of service. It was held that the
all burglars, and therefore did not pro- attachment papers sufficiently showed
vide for trying this one.' " that the city had been served and so
1. This affidavit is copied from the was a party.
record in the case of People v. Dwyer, 3. Although issued by the county
90 N. Y. 402. See Birds. Rev. Stat. N. judge the injunction was no less the
Y. (1896), p. 795, 8, p. 796, 14, and mandate of the court. People v.
statutes cited supra, note i, p. 228. Dwyer, 90 N. Y. 402, citing N. Y. Code
2. An objection was taken on the Civ. Proc., 606, 3343; Erie R. Co. v.
hearing that it did not appear that the Ramsey, 45 N. Y. 646.
231 Volume 5.
6177. CON TEMP T. 6177.
That this morning, about the hour of eleven o'clock, I called on
Dennis McNamara, the city clerk of Brooklyn and clerk of the com-
mon council, for the purpose of ascertaining from him whether any
action had been taken by the common council at its meeting today
in reference to its passing any resolution to override the mayor's
veto of the resolution heretofore passed by the common council in
relation to the defendant's railway. Mr. McNamara informed me
that the common council, at its meeting this morning, had passed a
resolution to adopt the resolution heretofore passed by it, notwith-
standing the mayor's veto. I then asked him to show me the roll-
book of the board showing the result of the vote thereon, and what
members voted for the resolution, which he did, and I examined the
roll with him, and found thereby that the following named aldermen
voted in the affirmative:
William Dwyer, John McCarty, James Kane, James Weir, Jr.,
Daniel O'Connell, Philip Casey, James Donovan, William J. LePine,
Felix W. Doyle, William Allison, Philip Schmitt, William H. Waters,
Thomas Bowers, Richard S. Roberts, Benjamin D. Seaman, Patrick J.
Kelly and Thomas R. A r milage.
And those voting in the negative were:
Aldermen Harry O. Jones, Robert Black and Theodore D. Dimon, as
will more fully appear by a certified copy of said resolution hereto
annexed.
That deponent was also informed by Alderman Richard S. Roberts
that they had passed the resolution over the mayor's veto.
Deponent further says that at the time of the passage of said reso-
lution the injunction in this action was still in full force and effect, and
that the passing of said resolution was a gross violation of said
injunction.
Deponent therefore asks that an order be made herein directing
that an attachment be issued to the sheriff of Kings county against
each and every one of the said persons named above who voted in
the affirmative to pass said resolution, and that they be punished
according to law.
D. Barnett.
Sworn to before me the thirty- first day of December, i881.
E. J. Bergen, Commissioner of Deeds.
bb. To RESTRAIN OPERATION OF MINE.'
1. Sufficient Affidavit. Where the affi- orders and processes of the court, and
davit alleged that since service on described particularly the manner in
defendants of the injunction which had which the mine had been operated, and
been issued on the sixteenth day of alleged that large quantities of material
January, and served on defendants on had been deposited in Deer creek, tribu-
the thirtieth day of the same month, tary to the Yuba river, in violation of
the said defendants had been working the writ of injunction, the allegations
and operating by the hydraulic process were sufficient. Ex p. Ah Men, 77 Cal.
the mine described in the complaint, in 198. See also Hedges v. Superior Ct.,
wilful and gross disobedience of the 67 Cal. 405.
232 Volume 5.
6177. CON TEMP T. 6177.
Form No. 6177.
(Precedent in People v. District Ct., 19 Colo. 344.)'
[State of Colorado, \ In the District Court within and for
County of El Paso, f said County.] 2
The People \pf the State of Colorado, ~\
ex relatione Samuel S. Bernard^
v.
Thomas L. Darby and Bradford.
Samuel S. Bernard being duly sworn on oath says, that heretofore
an injunction was issued out of said court in a certain suit wherein
Samuel McDonald and others were plaintiffs and the Elkton Mining
and Milling Company was defendant; and also another injunction in
a certain other suit wherein Thos. L. Cathcart was plaintiff and said
company defendant; and also another injunction in a certain other
suit in said court wherein Hull and others were plaintiffs and said
company defendant; that each of said injunctions was issued on
behalf of said company restraining the plaintiffs in each of said cases,
their agents and employees and all persons acting for them and all
persons claiming under any contract or agreement into which the
plaintiffs or any of them after commencement of said suits and all
persons in privity with said plaintiffs or any of them, from removing
and from mining and selling any of the ores or minerals of or within
the boundaries of the Walter lode mining claim in Cripple Creek
mining district in the county of El Paso and from disposing of any
of said ores already mined or the proceeds thereof.
Deponent says that defendant Darby was present in court and had
full knowledge of the granting of said injunctions and that defend-
ants have, as deponent is informed and believes, full knowledge of
the issuance thereof; that said injunctions are still in force.
Upon information and belief, deponent says that each of said
defendants claim the right to work, mine and remove ores of said
Walter lode under some agreement made between them and plain-
tiffs, since the commencement of each of said suits, and that what-
ever rights said defendants have in or to the ores of said Walter lode
have been acquired since the commencement of said suits.
Deponent further says, that a large force of men have been since
the issuance of said writs of injunction, and still are, as deponent is
informed and believes, engaged in mining and removing the valuable
minerals from said Walter lode, under and by direction of defendants,
the property of defendant company; that at the time of granting of
said injunctions and the issuance of said writs there was already
1. In this case violation of the in- these orders, and he violated, at his
junction was admitted; but the defense peril, the injunction order which he
was based on an alleged purchase of was bound to obey implicitly,
the property after commencement of See Mills' Anno. Code Colo. (1896),
suit but before any affirmative relief 149, and list of statutes cited supra,
had been granted. The defendant in note i, p. 228.
the present suit, however, was included 2. The words enclosed by [] will not
in the terms of the restraining orders be found in the reported case, but have
and was present in court and had full been added to render the form corn-
knowledge of the nature and extent of plete.
233 Volume 5.
6178. CONTEMPT. 6178.
mined and in transit to mills or smelters large quantities of said
Walter ores and minerals, and that said defendants have since that
time, and after full knowledge of said injunctions, disposed of such
ores and the proceeds thereof.
Wherefore deponent says that defendants are guilty of a violation
of said injunction, contrary to the laws and the statutes, and against
the peace and dignity of the people of the state of Colorado.
Deponent says that he is secretary of said mining company, a cor-
poration, and prays that defendants be required to show cause why
they should not be punished for contempt for violation of said
injunctions.
[Samuel S. Bernard.
Subscribed and sworn to before me this eighth day of January, i893.
John Hancock, Clerk District Court.] 1
(U) Judgment.
Form No. 6178.
(Precedent in State i>. McKinnon, 8 Oregon 487.)*
In the Circuit Court for the county of Douglas, State of Oregon.
State of Oregon, ex rel. J. H. Mahoney, \
Plaintiff, Action at law to pre-
v. > vent the usurpation
/. D. McKinnon, Alva Pike, J. H. Shupe, E.J. of office.
Page and George R. Sacry, Defendants. J
State of Oregon, }
County of Douglas, j
I, William R. Willis, being duly sworn, say I am attorney for
plaintiff above named; that said plaintiff did, on the twenty-fifth day
of June, iS79, recover judgment in the above entitled court and
cause against the said defendants, J. H. Shupe, E. J. Page, and
George R. Sacry, that they were guilty of usurping and unlaw-
fully exercising the office of trustees of the city of Oakland, and that
they be excluded therefrom; that I am informed and believe that
the said defendants, E. J. Page and John H. Shupe, in disobedience
of said lawful judgment, continue to and do now usurp and exercise
the office of trustees of said city of Oakland, and refusing and neg-
lecting obedience to said judgment.
William R. Willis.
Subscribed and sworn to before me August 26, i879.
T. R. Sheridan, Clerk.
1. The words and figures enclosed by reversed by the supreme court on the
[ ] will not be found in the reported ground that the judge had no power
case, but have been added to render under the statute or at common law
the form complete. to hear and determine charges of con-
2. This affidavit sufficiently shows tempt during vacation. See Hill's
the facts constituting the contempt; Anno. Laws Oregon (1892), 650,
but the final determination adjudging subs. 5, and list of statutes cited supra,
the defendant guilty of contempt was note i, p. 228.
234 Volume 5.
6179.
CONTEMPT.
6179.
(c) Mandamus,
aa. DIRECTED TO CANVASSERS OF ELECTIONS.
Form No. 6 I 7 9 .*
Supreme Court, Albany County.
The People of the State of New York '
on the relation of John L. Platt
and William C. Dailey,
against
The Board of State Canvassers of
the State of New York and Frank
Rice, Secretary of the State;
Edward Wemple, Comptroller;
Charles F. Tabor, Attorney- Gen-
eral; Elliott F. Danforth, Treas-
urer, and John Bogart, State
Engineer and Surveyor, as mem-
bers thereof, and each of them.
Dutchess County, ss.:
John L. Platt, being duly sworn, deposes and says: That he is one of
the relators in the above entitled proceeding; that on the twenty-ninth
day of December, i891, the said defendants held a meeting, as the Board
of State Canvassers of the State of New York, at which meeting they
canvassed the returns from the board of canvassers of the counties of
Columbia, Putnam and Dutchess of the votes for candidates for the office
of senator for the fifteenth senatorial district composed of said coun-
ties; that said defendants thereupon regarded a certain return,
known as the " Mylod return," and referred to in the order entered
herein December 7, iS91, hereinafter referred to; that the said defend-
ants did not consider a certain other return, known as the " Correct
return," herinafter referred to, and that they made a certificate of elec-
tion whereby they certified and declared that one Edward B. Osborne
had received the greatest number of votes in the counties of Columbia,
Putnam and Dutchess for the position of senator from ih& fifteenth sena-
torial district, whereas, in fact, upon said returns, he had not received
the greatest number of votes, as hereinafter more particularly shown;
And this deponent further says that hereto annexed, marked Ex. A,
is a copy of the said return known as the " Mylod return," in so far as
it contains the statement of the votes in Dutchess county for the office
of senator from said district.
1. This form is copied from the
record in the case of People v. Rice,
144 N. Y. 249, in which case there was
a conviction. What constituted the
contempt here was the fact that the de-
fendants, knowing of the order for the
issuance of a peremptory writ of man-
damus, did the thing which the issu-
ance of the writ was intended to pre-
vent. The court in that case said, citing
Hull v . Thomas, 3 Edw. Ch. (N. Y.)
236, and English cases therein cited:
" It is no new principle that a person
may be held guilty of the offense of
contempt, for having done an act after
the court had decided to enjoin its
doing; although that decision had not
been formally and technically carried
out, or formulated, into an order or
writ."
See Birds. Rev. Stat. N. Y. (1896), p.
796, 14, subs. 2, and list of statutes
cited supra, note i, p. 228.
235
Volume 5.
6179. CON TEMP T. 6179.
He further says that hereto annexed, marked Ex. B, is a copy known
as the "Correct return," in so far as it gives the true statement of the
votes in said Dutchess county for said office.
Deponent further says, that hereto annexed, marked Ex. C, is a copy
of the said order of December 7, i891, which was duly filed in the office
of the clerk of Albany county on that day.
Deponent further says that hereto annexed, marked Ex. D, is a
copy of a certain stipulation hereinafter more particularly referred to.
Deponent further says that hereto annexed, marked Ex. E, is a copy
of an order of the general term of this court, dated December 7, \W1,
and duly entered and filed in the office of the clerk of Albany county
on December 9, i S91.
Deponent further says that hereto annexed, marked Ex. F, is a copy
of the decision and order of the Court of Appeals upon an appeal by
the defendants from the said order of the general term, in so far as said
order modifies the said order of December 7th.
Deponent further says that hereto annexed, marked Ex. G, is a state-
ment showing how the said order of December 1th would read as
modified by the said decision of the Court of Appeals, and what the
mandamus, if issued pursuant thereto, would have commanded the
defendants to do.
And this deponent further says that the returns from the board of
canvassers from the counties of Columbia and Putnam, before the said
defendants as such board of state canvassers, showed that the said
Edward B. Osborne had received in said counties of Columbia and Put-
nam 6,669 votes, and that one Gilbert A. Deane had received 6,839
votes for the office of said senator, and that upon those returns, and
upon the said " Correct return," it appeared that the said Edward B.
Osborne had not received the greatest number of votes for said office
of senator in said counties of Columbia, Putnam and Dutchess, but that
said Deane had received the greatest number thereof.
And this deponent further says that in determining and declaring
that the said Osborne had received the greatest number of votes for the
said office of senator from said district, and in subscribing their cer-
tificate of such determination, said defendants canvassed and regarded
the said " Mylod return " and failed and omitted to consider the said
"Correct return."
And deponent further says that the stipulation, hereinbefore referred
to (the original of Ex. Z>), was entered into by the said defendants for
the purpose of obtaining a stay of the issuance of the writ of man-
damus which was directed by the said order of December 7th, and the
issue of the said writ of mandamus was thereupon stayed by the rela-
tors herein in reliance upon said stipulation.
Deponent further says that the said " Correct return " (the original
of Ex. .5) was the return referred to in the said order of December 7th
(the original of Ex. C) as the return which, by said order, the said
defendants were directed to consider. Said " Correct return " was
filed with the governor of the state, the comptroller of the state, and the
secretary of state, as required by law, on or about the twenty-first of
December, i891, and was, as a matter of fact, before said defendants at
the time they held their said meeting on December 29, iS91.
236 Volume 5.
6179. CON TEMP T. 6179.
This deponent makes this last allegation upon information and belief,
derived from the following facts:
Upon December 5, iS91, in a certain proceeding in this court, in
Dutchess county, wherein the People, upon the relation of the relators
in this case, the plaintiff, and the Board of County Canvassers of Dutchess
County and these defendants were defendants, an order was duly entered
whereby it was ordered that a writ of mandamus should issue to the
said Board of County Canvassers of Dutchess County, requiring them to
make certain corrections in their canvass of the votes of Dutchess
county for the office of senator from said district, and that they cause
their correct determination and statement to be certified, attested, and
filed, as required by law, which mandamus was issued and executed,
and pursuant to which the said " Correct return " (the original of Ex.
B} came into existence, was filed with the clerk si Dutchess county, as
required by law, and certified copies thereof were transmitted to the
said governor, comptroller and secretary of state, as hereinafter shown,
and it was such return which the said order of December 7th (the
original of Ex. C) contemplated and referred to the proceedings to
obtain which correct return having been started at the same time as
the proceedings in this case, and being well known to all the parties to
this proceeding and their attorneys.
The object of the said proceeding in the Dutchess county case being
to obtain a correct return, and the object of their proceeding being to
compel the defendants to canvass and regard the correct return
instead of the false one, the said proceedings in the Dutchess county
case were brought to a successful determination. The correct return
was obtained and forwarded and was before the said defendants, as is
shown in the annexed affidavit of Charles F. Cossum.
Deponent further says that the said defendants and each of them,
respectively, had full knowledge and notice of the said orders, deci-
sions and stipulation hereinbefore referred to.
Deponent makes this last allegation upon information and belief,
derived as follows:
From the affidavits of service hereto annexed; from the fact that the
defendants were officials, the duties of whose position required them
to make themselves acquainted with the proceeding herein detailed
as affecting their official action, and from the fact that all of said pro-
ceedings were matters of public notoriety published in the newspapers
throughout the state, the time being one of great political excitement,
the papers giving full account of what was done each day in the courts.
And deponent further says that between the dates December 7 and
December 29, iS91, they, the said defendant, together with their coun-
sel, Isaac H. Maynard and Delos McCurdy, entered into a conspiracy
by which they agreed that in case any correct return from Dutchess
county should be transmitted to them, pursuant to the said mandamus
in the Dutchess county case, so issued, as hereinbefore set forth, they,
the said defendants, would refuse it and would return it to the county
clerk of Dutchess county so that it should not be before them.
Deponent makes this allegation upon information and belief, derived
as follows:
From a certain open letter, bearing date March 16, \W%, and signed
237 Volume 5.
6 1 79. CON TEMP T. 6179.
by Isaac H. Maynard, published by him, in the course of which and on
page 9 he states that he and the said McCurdy and the said defendants
had a consultation (which by said letter appears to have been held
about the middle of December, i891), in which it was agreed that they
would not receive any such return, and if the attempt was made to
transmit it, the said defendant should return it to the county clerk of
Dutchess county; and the said Maynard further states in said letter that
upon said returns (being the ones mailed by the said Storm Emans on
December 21st to the governor, secretary of state and comptroller)
being received by those respective officers at Albany, they were all
taken from them or from their offices and handed back to the said
Storm Emans.
Also from the fact that deponent saw in a report of the New York
newspapers of a meeting of the Bar Association that the said Delos
McCurdy made a similar statement in the Bar Association of New
York City.
Deponent further says that, as he is informed and believes, and
charges the fact to be, that the said defendants were guilty of an
abuse of their said appeal to the general term from the said order of
December 7th and of their appeal from said order of said general term
to the Court of Appeals and of the stay of proceedings obtained by them
upon the faith of their said stipulation in that the said defendants
made use of the same for the purpose of enabling them to take meas-
ures to defeat the said order of December 7th, so appealed from, in case
the decision should be against them in the Court of Appeals, and by
holding their meeting on the 29th day of December, iS91, which was the
day when the Court of Appeals rendered its said decision, they regarded
the said " Mylod " certificate and issued their said false certificate of
election, before the judgment of the Court of Appeals could be made
the judgment of this court, by filing the remittitur and entering the
usual order thereon, and before any mandamus could be issued against
them, pursuant to the said order of December 7th as so modified.
And deponent further says that, as he is informed and believes,
and charges the fact to be, that they, the said defendants, were guilty
of deceit in entering into said stipulation, in that they entered into
the same without any intention of being bound thereby, but with the
fraudulent and deceitful purpose to obtain a stay of the issuance of
the writ therein directed; they intending, as soon as the Court of Ap-
peals should render a decision upon said appeal, that they would, in
case such decision was adverse to them, immediately meet as the
board of canvassers and canvass the said " Mylod return " and refuse
to consider the "Correct return," before an order upon the remitti-
tur could be entered in this court and before any writ of mandamus,
as provided in said order of December 7th, could be issued, and the
said defendants carried out said fraudulent and deceitful purpose
and did, upon the said decision of the Court of Appeals being rendered
against them, meet and act, as hereinbefore set forth, and issue their
certificate declaring said Osborne to be elected, as hereinbefore stated,
before any mandamus could be issued.
And this deponent further says that he has instructed his attorneys
to commence these proceedings as for contempt of court out of a sol-
238 Volume 5.
6 1 80. CONTEMPT. 6 1 80.
emn sense of the duty which he owes as a citizen and as a relator in this
action; deponent has waited until the passion and strife immediately
occasioned by them have calmed down, the matters in controversy
having been contested election cases and the voters of the state hav-
ing been very much excited in regard to them; deponent has felt
that an atmosphere of public clamor was not appropriate in which
to have such proceedings as these carried on; the year i892 being
what is called a presidential year, during which the nominations for
the presidency and the election following the same is held, deponent
felt that those matters were of such absorbing interest that it was
the part of wisdom to suspend such proceedings as these, especially
when, if started before election, the charge might be made that they
were instituted or prosecuted merely for political effect, and deponent
has waited until after the presidential election was over and men's
minds had fully settled down before giving instructions to start this
prosecution.
And further deponent saith not.
John /. Plait.
Sworn to before me this thirtieth day of January, iS93.
Edgar M. Meeks, Notary Public.
bb. DIRECTED TO JUDGE.
Form No. 6180.
(Precedent in People v. Pearson, 4 111. 271.)'
State of Illinois, }
Cook County. j SS>
J. Young Scammon doth solemnly, sincerely and truly declare and
affirm, that at the April term of the Circuit Court of Cook county,
held at Chicago in said county, in the year eighteen hundred and forty,
this affiant delivered in person, in open court, to John Pearson, judge
of said court, the original writ of mandamus of which the foregoing
and within is a true copy, and presented to him a copy of the bill of
exceptions therein mentioned, to sign, to wit, on the twenty-fifth day
of April last past, in a most respectful manner, and thereupon said
judge caused the clerk of said court to enter the order hereto
annexed, marked A, and made a part of this affidavit; and after-
ward, to wit, on the day of May, A. D. eighteen hundred and
forty, during said term of the court, said judge caused the following
papers, marked B, to be served upon this affiant, by the sheriff of
Cook county, and compelled this affiant to appear and answer the
same, which he did. And thereupon the said judge declared that he
should not sign said bill of exceptions, and did not sign the same,
and has not since signed it, as this affiant is informed, and believes
to be true.
J. Young Scammon.
1. It was held in this case that where In People v. Judges, 2 Cai. (N. Y.)
a writ of mandamus is delivered to a 97, it was held that it should appear
judge or other person to whom it is from the affidavit that the persons who
directed, and he refuses to obey it, an were served with the writ of mandamus
attachment will issue for contempt of were those who ought to have signed
court. the bill.
239 Volume 5.
6181. CONTEMPT. 6181.
Affirmed to according to law, May 29th, iSJfi, before the clerk of
the Cook Circuit Court, and the seal of said court affixed.
(SEAL) Richd. J. Hamilton, Clk.
(//) Orders.
aa. FOR EXAMINATION.
(aa) Of Party Before Trial.
Form No. 6 I 8 I .'
New York Supreme Court, City and County of New York.
Rochester Lamp Company, plaintiff, )
against V Moving Affidavit.
John R. Brigham, defendant. )
City and County of New York, ss. :
Edward C. Perkins, being duly sworn, deposes and says as follows,
to wit:
I. I am one of the attorneys for the plaintiff in the above entitled
action, which was commenced by personal service of the summons
upon the defendant on the sixth day of June, i895.
II. The defendant appeared in this action on the sixth day of
June, i895, by Brigham 6 Baylis, attorneys and counselors-at-law of
New York City, as his attorneys.
III. This action is brought by the plaintiff in order to recover
from the defendant certain amounts due upon a contract by which
the defendant, for a valuable consideration, agreed to pay to the
plaintiff certain royalties upon all lamps of the description known as
central-draft lamps, which might hereafter be purchased, directly
or indirectly, by the defendant of the firm of Edward Miller 6 Com-
pany, of New York City.
IV. The complaint in this action has never been served, for the
reasons which will hereafter appear, and the time of the plaintiff to
serve the said complaint has, from time to time, been extended, and
was, on the eighteenth day of November, i895, by order of the Hon.
Abraham R. Lawrence, one of the justices of this court, extended to
and including the eighth day of December, i895.
V. On the twenty-eighth day of June, i895, plaintiff, by its attorneys,
made application to the Hon. Abraham Lawrence, one of the justices
of this court, for an order directing the defendant to appear for
examination before trial in this action, upon the ground that such
examination was necessary, both in order that the plaintiff might
frame its complaint, and on the ground that it could not safely pro-
ceed to trial without such examination. On the same day an order
for such examination was made by Mr. Justice Lawrence, and a copy
whereof was served personally upon the said defendant, John H.
Brigham, on the twenty-eighth day of June, 1 895. The said order
and an affidavit proving due service thereof are hereto annexed. .
VI. At the time, place and hour at which the said defendant was
1. This form is copied from the guilty of contempt. See Birds. Rev.
records in Rochester Lamp Co. v. Brig- Stat. N. Y. (1896), p. 796, 14, subs. 2,
ham, i N. Y. App. Div. 490, wherein and list of statutes cited supra, note
it was held that the defendant was i, p. 228.
240 Volume 5.
6182. CONTEMPT. 6182.
in and by the said order directed to appear for* such examination,
the attorneys for the said defendant appeared and moved before Mr.
Justice Stover, who was then sitting at chambers, to vacate the said
order upon the papers upon which the same was granted. There-
upon, on the application of the plaintiff's attorneys, the said exami-
nation was adjourned by Mr. Justice Stover until the tenfh day of July,
i895, at the same time and place, and thereafter and on the tenth
day of July, iS9o, an order was entered in this action of Mr. Justice
Lawrence.
VII. Thereafter the plaintiff in due season appealed in the general
term of the Supreme Court from the order of the tenth day of July,
\W5, aforesaid, and said appeal having duly come on to be heard, the
said order of the tenth day of July, \W5, was reversed and an order to
that effect was duly entered in this court on the eighteenth day
of October, \W5, whereby in addition the defendant was ordered to
appear for his examination in pursuance to the aforesaid order of
Mr. Justice Lawrence at chambers of this court on the twenty-second
day of November, i&95, at 10:30 o'clock, as will more fully appear
from the copy of said order, which is hereto annexed and made a
part of this affidavit.
VIII. Deponent is advised and believes that the said John H. Brig-
ham left the United States either shortly before or immediately after
the tenth day of July, \W5, and has not since been within the state
of New York.
IX. On the tenth day of November, i&95, a certified copy of said
general term order was served personally upon the defendant, John
H. Brigham, at Birmingham, England, as will further appear from the
affidavit of A. G. Johnson hereto annexed.
X. On the first day of November, i895, a certified copy of the said
general term order and notice of the entry thereof was served upon
Messrs. Brigham 6- Bay Us, the attorneys for the defendant, in the
city of New York.
XI. The defendant wholly failed to appear for his examination as
directed by the order of Mr. Justice Lawrence, aforesaid, and pursu-
ant to the said order of the general term fixing the date for such
examination, as will appear from the minutes of his default made by
Mr. Justice Ingraham hereunto annexed.
Edward C. Perkins.
Sworn to before me this second day of December, iS95.
Henry H. Abbott, Notary Public,
New York Co., 112.
(bb) In Supplementary Proceedings.
Form No. 6182.*
Supreme Court, New York County.
John Doe, plaintiff,
against
Richard Roe, defendant.
\.New York. Code Civ. Proc., Where a defendant is ordered to show
2457 (Birds. Rev. Stat. (1896), p. 3031, cause why he should not be punished
26). as for a contempt in disobeying an
5 E. of F. P. 16. 241 Volume 5.
6183. CO NT BMP T. 6183.
State of New York, \
City and County of New York, j
Edward Green, being duly sworn, deposes and says:
I. That he is the attorney 1 of John Doe, plaintiff in the above entitled
action, and that on the eighth day of July, i&96, judgment in said
action was duly recovered and entered against the said Richard Roe,
defendant above named.
II. That thereafter execution against the property of the said
defendant, Richard Roe, was duly issued, and thereafter returned
wholly unsatisfied. 2
III. That thereafter and on the tenth day of October, \W6, an order
for the examination of the said Richard Roe* in supplementary proceed-
ings was duly obtained, and the said order was, on the eleventh day of
October, i&96, duly served upon the said Richard Roe; and that a copy
of the said order and of the affidavit of the service of said order upon
Richard Roe are annexed to this affidavit and made a part hereof.
IV. That on the twenty-second 'day of October, i8, at eleven o'clock in
the forenoon of said day, the deponent attended before Honorable
Roger A. Pryor, one of the justices of this court, at the chambers thereof
held in the county court-house in the city of New York, and there re-
mained for the space of one hour prepared to take the deposition of the
said Richard Roe, pursuant to the said order, but that the said Richard
Roe, judgment debtor herein, failed to appear before the said justice
at the place aforesaid during the time above mentioned, thus dis-
obeying the aforesaid order.
V. That at the said time and place the deponent caused the said
Richard Roe to be duly and repeatedly called, but that he failed to
appear, whereupon deponent had his default duly noted.
Edward Green.
Sworn to before me this twenty-eighth day of October, iS96.
Charles Rice,
Notary Public, N. Y, County.
bb. To PAY MONEY TO RECEIVER. 4
order, in proceedings supplementary to motion to punish a third person for con-
execution, " enjoining and restraining tempt in not appearing was denied,
the debtor from making any transfer Sloan v. Higgins, i Law Bui. 59.
or other disposition of his property not 3. Misnomer of Defendant. Where the
exempt by law from execution, or from name of the defendant is wrongly stated
any interference therewith," the affi- both in the judgment and the order, it
davits must show affirmatively that the is not a contempt for him to fail to corn-
money or property which the defendant ply with the order for examination, even
has received or paid out, or that some though he is the real person intended,
part of it, was due him or was earned Muldoon v. Pierz, I Abb. N. Cas. (N. Y.
by him prior to the date of the order. Supreme Ct.) 309. But by appearance
Potter v. Low, 16 How. Pr. (N. Y. Su- and examination without objection, the
preme Ct.) 549. right to raise the question of misnomer
1. Affidavit by Attorney. Where the is waived. Matter of Johns, I Law
affidavit is made by an attorney, he need Bui. 75.
not swear to or prove his authority to 4. Demand Necessary. To bring a
act. Miller v. Adams, 52 N. Y. 409. party into contempt for disobedience
2. Execution Returned Unsatisfied. of an order or judgment requiring the
Where it did not appear that the execu- payment of money or the delivery of
tion had been returned unsatisfied, a property, it is not sufficient that the
242 Volume 5.
6183. CON TEMP T. 6 1 84.
Form No. 6183.
(Precedent in Cartwright's Case, 114 Mass. 233.)
Respectfully represents to the Justices of the Supreme Judicial
Court James C. Davis, who has been heretofore appointed one of the
receivers of the Hide df Leather Insurance Company, "that John IV.
Cartwright, one of the receivers of said company, has failed and
neglected to comply with the order of this court made on the thir-
teenth day of December current, whereby he was directed to pay into
the hands of the said James C. Davis, receiver as aforesaid, on
or before Wednesday, the seventeenth day of December current, the sum
of thirteen thousand five hundred and sixty-five and ninety-seven one-
hundredths dollars, to be administered as part of the assets of the
said company, and that the said Cartwright has not paid to him any
part of the said sum.
And the said James C. Davis further represents unto your honors
that the account which was annexed to the said order of December 13th
was prepared by him from the books of the receivers of the said
company, and that it is just and true; that of the amount appearing
to be due from said Cartwright to said receivers by said account,
being 13,565.97, in all, the sum of thirteen hundred and forty-two and
fifty-three one-hundredths dollars (13Jf2.53) was charged for interest,
at the rate of six per cent, per annum, upon the indebtedness of said
Cartwright to said receivers; and the sum of sixteen hundred and fifty
dollars ($1650), for money loaned to said Cartwright by said Hide 6"
Leather Insurance Company before the appointment of said receivers,
which has never been paid to the said receivers; and that the remain-
ing sums charged in said account, amounting to ten thousand five hun-
dred and seventy-three and forty-four one-hundredths dollars ($10,573.44),
are sums of money which were withdrawn by the said Cartwright
from the assets of the said company, in the hands of the receivers
thereof, from time to time at the dates and in the amounts shown by
said account, and appropriated by him to his own personal use, as the
said fames C. Davis is informed and believes; and that such with-
drawal and appropriation has not been at any times directed or
authorized by any order of this court.
James C. Davis, Receiver,
December 18, i87S.
Suffolk, ss.
Subscribed and sworn to before me,
James G. Freeman, Justice of the Peace.
((?) Subpoena.
Form No. 6184.'
The Circuit Court for the County of Wayne.
order or judgment be served upon him mand; and where the order is to deliver
and he be made fully acquainted with property over to a receiver the property
its effect; but, in addition thereto, a must be demanded by the receiver
compliance with the order or judgment personally. McComb v. Weaver, II
must be explicitly demanded by a party Hun (N. Y.) 271.
who has a right to make such a de- 1. Michigan. How. Anno. Stat.
243 Volumes
6185. CONTEMPT. 6185.
John Doe \
against
Leonard A. Ford. )
State of Michigan^ \
County of Wayne. \ ss '
Leonard A. Ford, the defendant in this cause, being duly sworn, de-
poses and says, that on the ninth day of April, at the city of Detroit
in said county, he served the annexed subpoena on Richard Roe,
the witness named therein, personally, by then and there showing to
the said Richard Roe the said subpoena, with the seal of the court
thereon, and delivering to him a true copy thereof, and paying to
the said Richard Roe, at the same time and place aforesaid, the sum
of one dollar and ten cents, for his fees for traveling to and from the
court named in the said subpoena, and for his attendance thereat.
And this deponent further says that the said Richard Roe is a material
witness for him on the trial of this cause, without whose testimony
he cannot safely proceed to the trial thereof, as he is advised by
Joseph Story, Esq., his counsel therein, to whom he has fully and
fairly stated the case in this cause, and what he expects to prove by
the said Richard Roe, and as this deponent verily believes. And
this deponent further says that the said Richard Roe has wholly
failed to attend this court as a witness for this deponent in pursuance
of the said subpoena, without any reasonable excuse known to this
deponent.
. Leonard A. Ford.
Sworn to and subscribed this seventeenth day of April, A. D. iS96.
Abraham Kent, Justice of the Peace.
b. Information for Contemptuous Publication. 1
Form No. 6185.
(Precedent in People v. Wilson, 64 111. 197.)
State of Illinois, \ Northern Grand Division.
Supreme Court, j SS> September Term, A. D. i87#.
The People of the State of Illinois \
v. > Information.
Charles L. Wilson and Andrew Shuman. }
And now come the said People, by Washington Bushnell, Attorney
General, and represent to the court that on the 16th day of October,
(1882), $ 7257, subs. 5, 7259. See clear and unmistakable cases, such as
also list of statutes cited supra, note contemptuous publications in a news-
i, p. 228. paper. The statement in this case,
1. In State v. Frew, 24 W. Va. 416, it which was sufficient, was as follows:
was held that although in cases of con- "To the Honorable Judges of the
structive contempt the proceedings are Supreme Court of Appeals of West
usually based on an affidavit or other Virginia.
sworn statement of the facts consti- As is well known to the court, there
tutiflg the contempt, yet such an affi- was pending here on the rSth day of
davit or statement is not always essen- June, 1^84, and there is now pending
tial, but that the court may act on its and undetermined, a proceeding by
own information or on the unsworn mandamus, at the relation of Joseph S.
statement of a member of the bar in Miller, Auditor, against T.H.Buchanan,
244 Volume 5.
6185.
CONTEMPT.
6185.
A. D. i87, there was, and still is, pending in this court, a certain cause
for the adjudication and determination of this court, wherein one
Christopher Rafferty is plaintiff in error and The People of the State of
Illinois are defendants in error, and that, on the same day there was
published in the city of Chicago, in said State, a certain daily news-
paper called the Chicago Evening Journal, of which said paper on said
day the said Charles L. Wilson was proprietor and the said Andrew
Shuman was editor, and that said Charles L. Wilson and Andrew
Shuman, on the said day caused to be published in said paper, of and
concerning said cause so pending in this court, and of and concern-
ing this court and its supposed action with reference to said cause, a
assessor of Brooke county. This pro-
ceeding involves the constitutionality
of the exemption act, contained in sec-
tion 43 of chapter 12 of Acts of 1881,
and the propriety of what is well
known throughout the State as the
' supplemental assessment order.'
I have the honor to be a member of
the bar of this Court and to be the
counsel for the relator in the cause re-
ferred to.
On the 1 8th day oijune, the Wheeling
Intelligencer, a newspaper of general
circulation published in the city of
Wheeling, contained an editorial article,
referring expressly to the questions I
have mentioned as involved in said
cause and referring by implication to
that cause itself. This article stated
that three out of the four judges of
your honorable Court had told a Demo-
cratic caucus, more than a year ago, in
effect that the Court would sustain the
'supplemental assessment order' and
hold the exemption statute unconsti-
tutional. The article then says that it
was not intended that ' the purpose of
the Court' should be made public, and
intimates that the publication of its
purpose ' may induce the Court to
change its mind.' I beg leave to sub-
mit with this communication a copy
of the newspaper containing the article
referred to.
This article has every appearance of
an attempt to affect the decision of the
Court in the case of Miller v. Buchanan,
and to intimidate it into deciding
against the relator. While I do not
believe that any effect will be produced
upon the Court which will affect the
case, still I deem it my duty as an
officer of the Court and as counsel for
the relator, not to permit so palpable
an assault upon the purity and inde-
pendence of the administration of jus-
tice to pass unnoticed.
The firm of Frew, Campbell <5r* ffart r
composed oijohn Frew, A. W. Campbell
and C. B. Hart, are, as I am informed,
the publishers of the Wheeling Intelli-
gencer.
Should the members of this Court so
far forget their duty and dignity as to
express in advance, for political or
other purposes, their opinions upon
cases which may come before them, as
judges, no one would be quicker than
I to condemn such a practice. If it
could be shown me that any of your
honors had been guilty of what the
Intelligencer lays to your charge, I
would willingly join the editors of that,
paper in bringing the matter before the.
proper tribunal at the proper time-
But whether these matters are true or
false, the case of Miller v. Buchanan is
now pending and you alone must de-
cide it. While it is before you, your
conduct with respect to the case itself
and the questions in it is not the
proper subject, in my opinion, oL
public criticism.
Disclaiming any feeling of resent-
ment or animosity against the pub-
lishers of the Intelligencer, and acting
solely from a desire to do my profes-
sional duty, I now lay the matter be-
fore the court, and shall not feel that I
am called upon either to suggest to the
Court what it shall do in the matter
or to take part in the prosecution of
any proceedings, which may be insti-
tuted, should the Court see fit to act.
With great respect,
Henry M. Russell.
June 23, i8<jf ."
An information for contempt on ac-
count of a newspaper article which
charges that the publication was " false
and grossly inaccurate " is insufficient
if it fails to specify in what respects
the article is false. Worland v. State,
82 Ind. 49.
245
Volume 5.
6186.
CONTEMPT.
6186.
certain article, in the words following, that is to say: (Here was set
out a copy of the contemptuous article)*
Wherefore the said Attorney General, for and on behalf of the said
People, moves this court for a rule upon the defendants, Charles L.
Wilson and Andrew Shuman, to be and appear before this court, on a
day to be named, and show cause, if any they or either of them have,
why an attachment should not issue against them for a contempt of
this court in respect to the publication of said article.
Washington JBushnell, Attorney General.
c. Motion for Attachment for Failure to Obey.*
(1) INJUNCTION.
Form No. 6186.
(Precedent in Fort Worth St. R. Co. v. Rosedale St. R. Co., 68 Tex. 163.)'
Port Worth Street Railway Company, Appellant, )
v. [
Rosedale Street Railway Company, Appellee. )
In the Supreme Court of the State of Texas. Appeal from Tarrant
county.
1. The contemptuous publication was in
the language following, to wit:
" The Case of Rafferty.
At the time a writ of supersedeas
was granted in the case of the mur-
derer Chris. Rafferty, the public was
blandly assured that the matter would
be examined into by the supreme court
and decided at once; that possibly the
hanging of this notorious human
butcher would not be delayed for a
single day. Time speeds away, how-
ever, and we hear of nothing definite
being done. Rafferty's counsel seems
to be studying the policy of delay, and
evidently with success. The riffraff
who contributed fourteen hundred dol-
lars to demonstrate that ' hanging is
played out' may now congratulate
themselves on the success of their
little game. Their money is operating
splendidly. We have no hesitancy in
prophesying clear through to the end
just what will be done with Rafferty.
He will be granted a new trial. He
will be tried somewhere, within a year
or two. He will be sentenced to im-
prisonment for life. Eventually he
will be pardoned out. And this in
spite of all our public meetings, reso-
lutions, committees, virtuous indig-
nation, and what not. And why?
Because the sum of fourteen hundred
dollars is enough nowadays to enable
a man to purchase immunity from the
consequences of any crime. If next
winter's session of the legislature does
not hermetically seal up every chink
and loop-hole through which mur-
derers now escape, it will deserve the
bitter censure of ever honest man in
Illinois. We must simplify our modes
of procedure in murder trials. The
criminal should be tried at once, and
when found guilty should be hanged
at once, and the quicker hanged the
better. The courts are now completely
in the control of corrupt and mercenary
shysters the jackals of the legal pro-
fession who feast and fatten on
human blood spilled by the hands of
other men. All this must be remedied.
There can be found a remedy, and it
must be found."
2. See also forms of motion in 2 Rev.
Swift's Dig., p. 776; Baldwin v. State,
ii Ohio St. 681.
3. In this case the defendants were
adjudged not guilty of contempt be-
cause the injunction order was limited
in duration on its face " only until the
hearing." The cause was not kept
alive, therefore, after the hearing by
appeal, but as these facts do not appear
in the motion and the form is otherwise
good, it serves as a model where the
injunction has been disobeyed.
246
Volume 5.
6186. CONTEMPT. 6186.
To the Honorable Supreme Court of the State of Texas.
Your complainant, the Fort Worth Street Railway Company, respect-
fully respresents to the court:
That, heretofore, to wit, on the seventeenth day of September, 1884,
your complainant applied to the district court of Tarrant county,
Texas, for an injunction to enjoin and restrain the Rosedale Street
Railway Company from building or constructing any street railway
track on Houston street, in the city of Fort Worth, in Tarrant county,
Texas, until the respective rights of complainant and said Rosedale
Street Railway Company had been adjudicated and settled by the here-
inafter mentioned suit, then pending in said district court of Tarrant
county, to determine the question as to which of said two companies
had the superior right to build and construct a street railway on said
Houston street; that said district court of Tarrant county granted said
application and issued a writ of injunction enjoining and restraining
said Rosedale Street Railway Company, its officers, agents and servants
from building or constructing any street railway track on said Hous-
ton street until the respective rights of complainant and said Rosedale
Street Railway Company had been adjudicated and settled by said suit.
That complainant was defendant in the suit in which it obtained
said injunction, namely the suit of the Rosedale Street Railway Com-
pany v. The Fort Worth Street Railway Company; that said suit is now
in appeal in this (the Supreme) court.
Said Fort Worth Street Railway Company being appellant, and said
Rosedale Street Railway Company being appellee, and the said suit was
brought to determine which of the parties complainant or said Rose-
dale Street Railway Company, had the superior right to build and con-
struct a street railway on said Houston street. That in said suit, said
district court of Tarrant county, Texas, on the fifteenth day of May,
i%85, rendered a judgment decreeing the dissolution of said injunc-
tion and holding same for naught and adjudging the superior right
to construct and build a street railway on said Houston street to be
in said Rosedale Street Railway Company.
That this complainant has prosecuted an appeal from said judg-
ment to the Supreme Court of the State of Texas, and said appeal is
now pending in said Supreme Court at Austin, Texas.
That the effect of said appeal is to continue in force said injuhc-
tion. That heretofore, to wit, on the day of March, iS87,
said Rosedale Street Railway Company, its officers, agents and servants,
under the guise and color and in the name of the Queen City Street
Railway Company, which, complainant is informed and believes, and
therefore charges, has no legal corporate existence, commenced the
construction and building of a street railway track on said Houston
street, and is now prosecuting said work.
That said Queen City Street Railway Company filed articles of incor-
poration in the office of the Secretary of State of the State of Texas,
as far back as October 20, i881, but it never legally organized or took
any steps to begin active operation to construct a line of railway
until after said injunction was sued out as aforesaid. That at some
time during the year i8<$7 said Queen City Street Railway Company
organized, or pretended to do so, by electing officers, the names of
247 Volume 5.
6186. CONTEMPT. 6186.
whom are unknown to complainant, except that P. M. Willing was
elected president, Joe Mayer, treasurer, and J. C. Scott, secretary,
and Theo. Vogel, David Boaz, P. M. Willing, and J. C. Scott, directors.
That John Tierney is a stockholder in said Queen City Company; that
said Theo. Vogel is secretary and treasurer of said Rosedale Street Rail-
way Company, that said Joe Mayer is treasurer of said Queen City
Street Railway Company; that said John Tierney is president of said
Rosedale Street Railway Company and one of its directors as well as a
director of the said Queen City Street Railway Company; that said
David Boaz is director of said Rosedale Street Railway Company, as
well as of said Queen City Railway Company, and that said John Tier-
ney is a director of said Rosedale Street Railway Company, as well as a
stockholder of the Queen City Street Railway Company.
The complainant is informed and believes, and so charges, that
said Vogel, Boaz, Mayer and Tierney own a majority of the stock of
said Queen City Railway Company, and they are each large share-
holders in said Rosedale Street Railway Company; that before said
work of constructing and building said street railway track on said
Houston street as aforesaid by said Rosedale Company in the name of
said Queen City Company, said Vogel, Boaz, Tierney and Mayer each
had notice of said injunction sued out by complainant against said
Rosedale Street Railway Company %& aforesaid. That the work of con-
structing and building said street railway track, begun and now being
prosecuted on said Houston street in the name of and ostensibly for
said Queen City Railway Company, but really in the interest of and
for the benefit of said Rosedale Street Railway Company, has been and
is now being done on and over the same territory from the building
and construction of a street railway track on which said Rosedale
Street Railway Company was enjoined and restrained as aforesaid, and
on which it claimed the right to build and construct said railway
track in said suit, the determination of its right to do so in preference
to and exclusive of complainant, being the main object of said suit.
That said pretended organization of said Queen City Street Railway
Company was made by the officers and directors of said Rosedale Street
Railway Company, and was made for the purpose of enabling said
Rosedale Street Railway Company to evade the effect of said injunction,
and that said building and construction of said street railway track
on said Houston street in the name of said Queen City Street Railway
Company, is being done for the use and benefit of the said Rosedale
Street Railway Company, with an agreement that when completed said
Rosedale Street Railway Company is to run and operate its cars thereon ;
that the said Vogel, Boaz, Mayer and Tierney are encouraging, advis-
ing and aiding in the work of building the road of the pretended
Queen City Railway Company; that the said parties reside in Tarrant
county, and the place of business of the said street railway compa-
nies is Fort Worth, in said county.
Wherefore complainant prays that said Rosedale Street Railway
Company and said Queen City Railway Company, and said Theo. Vogel,
David Boaz, John Tierney and Joe Mayer be attached, and required
to show cause why they should not be punished for contempt for
disobeying said injunction, and that they be required to tear up the
248 Volume 5.
6187. CONTEMPT. 6188.
track which they have built on said Houston street in violation of
said injunction, and restore said Houston stree't to the same condi-
tion in which it was before they disregarded said injunction, and
complainant prays "for general relief.
John D. Templeton,
/. W. Terry,
Counsel for Appellant.
[(Verification^-
(2) JUDGMENT.
Form No. 6187.
(Precedent in State v. McKinnon, 8 Oregon 488.)*
Now comes the plaintiff above named, and moves the Hon. f. F.
Watson, judge of the above entitled court, upon the foregoing affi-
davit, for a warrant of arrest against the said defendants, E. J. Page
and John H. Shupe, to answer for contempt in neglecting and
refusing to obey said judgment.
W. J?. Willis, Plaintiff's Attorney.
d. Petition for Attachment for Failure to Obey Injunction. 1
Form No. 6 i 8 8 . 4
Carroll, ss. To the Hon. John Marshall, Chief Justice of the Supreme
Court:
Jane Doe, of Ossipee, in said county of Carroll, complains against
John Doe, of said Ossipee, and says that she is the wife of said John
Doe, and on the sixteenth day of October, iS97, she caused to be filed,
in the office of the clerk of said court of said county, her libel pray-
ing for a divorce from s>&\& John Doe, and for other relief, for the
causes therein set forth; and upon her petition a writ of injunction
was duly issued by said justice on the twentieth day of October, iS97,
enjoining and prohibiting saidy^/z Doe from imposing any restraint
upon her personal liberty during the pendency of said libel, which
was duly served upon said John Doe on the twentieth day of October,
1 897.
Yet the said John Doe well knowing the premises, but wholly
regardless of the said injunction, on the twenty-fifth day of October,
1 897, at Ossipee aforesaid, in the county of Carroll aforesaid, with
1. The motion was verified by the to restrain defendants from removing
agent of the Fort Worth Street Railway, certain machinery in their possession,
but the verification is not set out in the Stimpson v. Putnam, 41 Vt. 238.
reported case. For the form of verifi- Where the contempt consisted in the
cation in a particular jurisdiction con- coatemnor, a newspaper reporter, hav-
sult the title VERIFICATIONS. ing concealed himself in the jury room
2. This motion was annexed to the during the deliberations of the jury.
affidavit set out supra, in Form No. Matter of Choate, (Oyer & T. Ct.) 8
6178. N. Y. Crim. Rep. i.
3. See also the substance of petitions 4. This form is adapted from the
as follows: form set out in 56 N. H. 620. See also
Where the contempt consisted in the the form in 38 N. H. 623.
disobeying, a writ of injunction issued
249 Volume 5.
6189. CON TEMP T. 6189.
force and arms made an assault upon the said Jane Doe, and beat and
bruised her, and imprisoned and deprived her of her personal liberty
for the space of twenty days, from said twenty- fifth day of October,
1 857, to the fourteenth day of November, i8#7; in contempt of said
injunction, and against the peace and dignity of the state.
Wherefore she prays that said John Doe may be held to answer for
said contempt, and that justice may be had in the premises.
Jane Doe.
Carroll, ss. November 15, i87#.
Jane Doe personally appeared, and made oath that the above com-
plaint, by her subscribed, is, in her belief, true.
Before me,
Abraham Kent, Justice of the Peace.
2. Order to Show Cause. 1
a. For Contemptuous Petition for Rehearing.
Form No. 6189.
(Precedent in In re Woolley, n Bush (Ky.) lot.) 9
The Commonwealth of Kentucky, \
Court of Appeals, July 2, 1874. \
Whereas, Robt. W. Woolley, an attorney and officer or this court, did,
on the 27th day of June, 187.4, while exercising his functions and
privileges as attorney and officer aforesaid, file 3 in open court a
printed petition for a rehearing of the appeal in the case of P. D. B.
O.Gray v.J.M. Reamer and others, then pending therein, which contains
language not only disrespectful, but insulting to the court; and
whereas, on the 1st day of July, the said Woolley, of his own motion,
filed in open court, a paper denominated or styled "Statement QiR.
W. Woolley" in which, while disclaiming intentional disrespect to the
court in the matter of the petition in the case of Gray v. Reamer and
others, he reiterates some of the most offensive charges and imputa-
tions contained therein.
Now therefore the said Robert W. Woolley, attorney and officer afore-
said, is hereby ruled and required to appear in the Court of Appeals,
at the capitol in Frankfort, on the 8th day of September, i874, and
show cause, if any he can, why his authority to practice as an attor-
ney and officer of said court shall not (on account of the filing of said
1. Precedents. See also forms in sary, as the petition for a rehearing is
People v, Pearson, 4 111. 271; Wicker v. not a pleading, but an argument ad-
Dresser, 14 How. Pr. (N. Y. Supreme dressed to the court, and the contempt
Ct.) 466; Spinning v. Ohio L. Ins., etc., was therefore committed in presence of
Co., 2 Disney (Ohio) 336; State v. the court.
Kaiser, 20 Oregon 51; U. S. v. Church 3. Where the contempt consists in fil-
of Jesus Christ, 6 Utah 79. ing an offensive brief or paper, the party
2. It was claimed in this case that the cited to show cause why he should not
rule was not sufficiently specific, in that be punished for filing the same may rest
it did not specifically aver or state the upon his exceptions to the sufficiency
language deemed disrespectful and in- of the citation if it fails to charge that
suiting and does not in terms set out he wrote, signed or filed the offensive
the charges and imputations regarded brief or paper. Ex p. Rust, 38 Tex.
as offensive. This was held unneces- 344.
250 Volume 5.
6190.
CONTEMPT.
6190.
petition and statement) be revoked, and he be otherwise punished
for the contempt hereinbefore set out.
b. For Contemptuous Publication. 1
Form No. 6190.
( Precedent in State v. Judge, 45 La. Ann. 1251.)*
State of Louisiana.
Civil District Court for the Parish of Orleans.
Peter Fabacher
v. \ Division " C.'
Bryant 6 Mathers.
1. Precedent. In State v. Frew, 24
W. Va. 419, it was held that the notice
plainly and explicitly notified the de-
fendants of the cause and nature of the
offense and that they were the persons
charged with its commission. Omitting
formal parts, the rule was as follows:
" Henry M. Russell, esq., a member of
the bar of this Court, this day presented
a written communication addressed to
the Court referring to the fact that on
the i8th day of the present month of
June, the case of the State of West Vir-
ginia ex rel. Joseph S. Miller, A uditor,
v. T. H. Buchanan, assessor of Brooke
county, upon a petition for mandamus,
was in this Court pending and unde-
termined; that said case involved the
constitutionality of the exemption act,
contained in section 43, chapter 12 of the
Acts of 1881, and the propriety of what
is well known throughout the State as
the 'supplemental assessment order';
that he was the counsel for the relator
in said case; and that on the said /<?/,
day of June, the Wheeling Intelligencer,
a newspaper of general circulation pub-
lished in the city of Wheeling, contained
an editorial article referring to the
question involved in said case, and by
implication to the said case itself. With
this communication is presented a copy
of said newspaper containing said
article. The Court is informed that
Frew, Campbell &* Hart, consisting of
John Frew, A. W. Campbell and. C. B.
Hart are the proprietors and publish-
ers of said newspaper, and that said
C. B. Hart is the chief editor thereof.
The said editorial article is as follows:
' The State campaign seems to be
shaping itself. It leaks out that the
Supreme Court of Appeals is to be
brought to the rescue in a decision
affirming the constitutionality of the
exemption act, and declaring the sup-
plemental assessment order to be law-
ful and right. This is in effect, what
was promised by the three Supreme
Court judges to the Democratic caucus
before the order was issued.
It might be thought strange that any-
body could know what the decision of
the Supreme Court is to be on any ques-
tion. But it seemed equally strange
that three out of four judges of the
Supreme Court told the Democratic
caucus more than a year ago to go
ahead and rely on the backing of the
Court.
The present understanding is that
the decision is to be rendered before
the meeting of the Democratic State
Convention in order to simplify .the
situation. It is also understood that
this move is not intended to advance
the interests of Hon. E. Boyd Faulkner.
Of course it was not intended that
the purpose of the Court should be
made public, and publicity may induce
the Court to change its mind, just to
show that somebody has been taking
liberties with the text and misrepre-
senting the Court. We shall see what
we shall see.'
It is therefore considered and ordered
by the Court that a rule be and is here-
by awarded against the sa\A.John Frew,
A. W. Campbell 'and C. B. Hart, proprie-
tors and publishers of said Wheeling
Intelligencer, and said C. B. Hart, chief
editor thereof, commanding them and
each of them to appear before this Court
on Saturday morning, June 28, at ten
o'clock, to show cause, if any or either
of them can, why they and each of
them, shall not be attached for their
contempt of this Court in publishing
the aforesaid article.
It is further ordered that service of
a copy of this order on the said parties
above named, shall be considered as
service of the said rule."
2. It was held in this case that the
251
Volume 5.
6 1 90. CON TEMP T. 6190.
Thomas Egan, Jr., called in Warranty.
On motion of Lazarus, Moore & Lemie, of counsel for Peter Fabacher,
plaintiff herein, of E. W. Huntington and Horace L. Dufour, of counsel
for Bryant 6 Mathers, defendants, and of White, Parlange 6 Saunders,
of counsel for Thomas Eagan, called in warranty and on giving this
court to be informed and to understand that there is now pending
before this court in this division a cause as above entitled wherein
Peter Fabacher is plaintiff, Bryant 6^ Mathers are defendants, and
Thomas Eagan is defendant called in warranty of said Bryant 6
Mathers; that issue was joined in said cause upon the main demand
and upon the call in warranty; that after issue so joined said cause
was in due course of procedure fixed for trial; that upon the prayer
of the plaintiff it was to be tried by jury.
And on further giving the court to be informed and to understand
that said case was regularly called for trial on Thursday, March 16,
i893, and a jury impaneled and sworn to try the issues in said case
that the trial of said case was continued until Friday, March 11,
and testimony administered for and on behalf of plaintiff in support
of his demand, and that there were two witnesses sworn on said trial,
to wit: Peter Fabacher, the plaintiff, and John Mahone, a witness for
and on behalf of the plaintiff; that prior to the adjournment on
March IT, the jury being allowed their liberty and freedom, they
were instructed by the court to hold no converse with reference to
the case or the issues therein, and were especially instructed and
directed not to allow any one to discuss the case which they the
jury held as jurors under consideration for a verdict.
And on further giving the court to be informed and to understand
that the case was only partially tried, that all the witnesses for the
plaintiff had not been heard, that none had been called for the
defendants, Bryant 6* Mathers, and none for Thomas Eagan, called in
warranty, and that the case was continued for further consideration
by the court and the jury until Tuesday, March 21, iS93, at 11 o'clock
A. M., when the jury were by said court directed to be present in
court to hear the further testimony in the case and to pass upon the
issues therein.
And on giving the court to be further informed and to understand
that a newspaper known as the Times- Democrat, and published by the
Times-Democrat Publishing Company, of which Ashton P helps is presi-
dent, and Page M. Baker is the manager, did on Sunday, March 19,
i893, publish or cause to be published and circulated throughout the
city of New Orleans the daily issue of said paper, in which was con-
tained a commentary or criticism upon the case now pending before
civil district court for the parish of of that court, under proper proceedings,
Orleans is a court of record of original extends to both. It was further held
general jurisdiction, and is not an in- that where a publication in a newspaper
ferior court, in the technical sense of being read by jurors and attendants on
that term. It has the power and au- the courts would have a tendency to
thority to punish for contempt of court, interfere with the proper and unbiased
and though the proceedings in cases of administration of the laws in pending
constructive contempt differ from those cases, it may be adjudged a contempt
in cases of actual contempt, the power and accordingly punished.
252 Volume 5.
6191. CONTEMPT. 6191.
this court and the jury, and to give their opinion for the public's
perusal, of the relative positions of the parties to this controversy,
and their comments upon the testimony of the witnesses who had
testified in said case, and that the effect of the said publication was
to operate to the injury of all the parties to said case, and was a dis-
cussion of the case out of the hearing of the court, and had the
effect of influencing the judgment of the jurors, who have been
sworn to try the issues upon the evidence as adduced in court and
upon the law as given to them by the court.
And on further giving the court to be informed and understand
that the statements contained in said article are in many respects
not true and not justified by any evidence received in the case.
And on further giving the court to be informed and understand
that if in the said comments upon the case depending before the
court and the jury the said newspaper was acting upon its own
motion, it was guilty of a breach of the license and privilege of the press ;
and if acting from other motives they should disclose to the court at
whose suggestion or instance the said publication was made in order
that justice may be done, and that there should be no miscarriage of
justice in consequence of said publication; that by their acts and
doings in the premises they have been guilty of a flagrant breach of
the decorum of this court and are in contempt thereof.
It is ordered that the Times Publishing Company, through its man-
ager, Page M. Baker, and its president, Ashton Phelps, do show cause
on Tuesday, March 21, iS93, at 11 o'clock A. M., in open court, why
the said manager and president should not disclose to the court the
party at whose instance the said publication was made, and from
whom the information was received, and whether the said publica-
tion was paid for, and if so, by whom; or in default thereof, why
they should not stand committed for contempt of the authority of
this court under the statutes and laws of the State of Louisiana in
such cases made and provided.
e. FOP Failure to Obey. 1
1. Failure to Pay Money to Receiver. law, a portion of the assets of the said
In Cartwright's Case, 114 Mass. 234, Hide & Leather Insurance Company, it
the rule to show cause why the defend- is ordered that the said Cart-wright be
ant should not be punished for con- notified, by the service upon him of an
tempt for failing to pay over to his attested copy of this order, to be and
coreceiver certain moneys as ordered appear before some one of the justices
by the court was in the words following, of this court, at the court-house in
to wit : Boston, on Saturday, the twentieth day
" And now, it appearing to the court of December current, at nine o'clock in
here, upon the statement of James C. the forenoon, then and there to show
Davis, one of the receivers of the said cause, if any he has, why an attach-
company, thatfoAn W. Cart-wright, one ment should not issue against him, the
of the receivers of the said company, saidJoAn IV. Cart-wright, as and for a
has failed and neglected to obey and contempt of this court, as well for the
comply with the order of this court disobedience of the said order as for an
passed in said cause on the thirteenth unlawful appropriation of the assets of
day of December current, and also that the said Hide & Leather Insurance
the said Cart-wright has appropriated to Company to his own use.
his own use, without the direction of Charles Devens, Jr., J. S. J. C."
this court, and without the authority of
253 Volume 5.
6191. CONTEMPT. 6192.
(1) ORDER FOR EXAMINATION BEFORE TRIAL.
Form No. 6 i 9 i .'
New York Supreme Court, City and County of 'New York.
Rochester Lamp Company, plaintiff, )
against > Order to Show Cause.
John H. Brigham, defendant. )
On reading the annexed affidavits of Edward C. Perkins and A. G.
Johnson, and the paper annexed thereto, and on such other affidavits
as may be served by the attorneys for the plaintiffs herein on the
defendant, or his attorneys, on or before the seventh day of December,
\W5, \Q\. John If. Brigham, the defendant above named, show cause
at a special term of this court, to be held at chambers thereof, at the
county court-house, in the city of New York, on the eleventh day of
December, i89-5, at eleven o'clock in the/0mioon, or as soon thereafter
as counsel can be heard, why he should not be punished as for a con-
tempt for his misconduct in failing to obey the mandate of this court,
as alleged in the said affidavit of Edward C. Perkins, and why the
plaintiff should not have such other and further relief as may be just,
with costs of this motion. Service of this order on the above named
defendant, John H. Brigham, or on Messrs. Brigham & Baylis, his
attorneys, on or before the fourth day of December, i895, shall be
sufficient.
Dated New York, December 3, i895.
George P. Andrews, J. S. C.
(2) SUMMONS.
Form No. 6192.
(Precedent in State v. Bourne, 21 Oregon 225.)*
In the circuit court of the state of Oregon for the county of Mult-
nomah.
The State of Oregon, plaintiff,
v.
Jonathan Bourne, Jr., defendant.
And now this day the affidavit of A. C. Emmons, Esq., having been
filed in this court, in the matter entitled, "In the matter of letters
rogatory from the superior court at Suffolk county, Massachusetts, in
the case of Annie B. Everett v. John Stetson, pending therein," and it
being shown to the court by said affidavit that the above named
Jonathan Bourne, Jr., has disobeyed the process of this court duly
served upon him requiring him to appear and testify before said
A. C. Emmons, notary public, as commissioner, under commission
from the superior court of Suffolk county, Massachusetts, in said case
of Everett v. Stetson pending therein, by failing to appear before said
1. This form is copied from the rec- subs. 2, and list of statutes cited supra,
ords in Rochester Lamp Co. v. Brig- note I, p. 228.
ham, i N. Y. App. Div. 490. See Birds. 2. Oregon. Hill's Anno. Laws (1892),
Rev. Stat. N. Y. (1896), p. 796, 14, 797. See supra, note i, p. 228.
254 Volume 5.
6193.
CONTEMPT.
6193.
commissioner at the time and place named in said process, upon
motion of Annie B. Everett, by W. M. Gregory, her attorney, it is there-
fore ordered that said Jonathan Bourne, Jr., be required to be and
appear before this court at 1:30 o'clock P. M. of this day, or if service
hereof be not so soon made upon him, then forthwith upon service
hereof, then and there to show cause why he should not be arrested
to answer for contempt of this court, in disobeying the lawful process
of this court as above mentioned duly served upon him. It is fur-
ther ordered that a duly certified copy of this order be forthwith
served upon said Jonathan Bourne, Jr.
Dated September 24, i891.
E. D. Shattuck, Judge.
3. Attachment,
a. Order that Attachment Issue. 1
1. For Contemptuous Publication. In
In TV Millington, 24 Kan. 214, the order
for attachment for contemptuous pub-
lication, omitting the formal parts, was
as follows, to wit:
" Now, on this seventeenth day of
May, A. D. i8<Sb, there being reasonable
grounds for believing that Daniel A.
Millington and Edwin P. Greer are the
editors, publishers and proprietors of a
weekly newspaper called the Winfield
Courier, published and of general cir-
culation in the county of Cowley; and
that heretofore, to wit, on the twelfth
day of May, inst., the said Millington
and Greer caused to be published in
said paper several articles of and con-
cerning a certain case then pending
and undetermined in this court in
which the State of Kansas was plaintiff
and Charles H. Payson was defendant,
and among other things then and there
published the following language,
viz.: (ffere were set out three contemptu-
ous paragraphs.') The court being of
the opinion that the publications, such
as above set forth, concerning a case
pending in court, are calculated to ob-
struct and embarrass the administra-
tion of justice, have a tendency to
prejudice the public concerning the
merits of the case, and to weaken the
influence and authority of, and destroy
public confidence in, the tribunal try-
ing the cause, and as such are a con-
tempt of court, therefore ordered that
an attachment issue forthwith against
the said Millington and Greer, and that
they be brought before the bar of this
court, and be required to answer in
writing and under oath the matters
herein set forth and charged."
Conditional Order, unless Witness At-
tend and Testify. For the form of a
conditional order for an attachment,
unless a witness attend and testify, see
Briggs v. Mackellar, 2 Abb. Pr. (N. Y.
C. PI.) 68.
Failure to Obey Mandamus. In Del-
gado v. Chavez, 5 N. Mex. 661, the
following order for an attachment for
contempt was entered, to wit:
" It being shown to the court by the
petition and affidavit of William If.
Nesbitt, filed this iqlh day of January,
1897, in the cause lately pending in
said district court, in which Abraham
Staab,Juan Garcia and William H. Nes-
bitt were relators, and Pedro Delgado
was respondent, that the said defend-
ant, Pedro Delgado, has refused, and
still does refuse, to obey the peremp-
tory writ of mandamus issued out of
this court in said mandamus proceed-
ing on the 15 th day of January, 1897,
it is ordered by the court that an attach-
ment for contempt, returnable at five
o'clock this afternoon, issue for the
arrest of said defendant, Pedro Delgado.
Edward P. Seeds,
Associate Justice, etc.
Santa Fe, New Mexico^
January IQ, 1897."
Against sheriff for failure to bring in
defendant's body. People v. Marsh, 2
Cow. (N. Y.) 404
For violation of injunction held void
because the court issuing the restrain-
ing order had no jurisdiction so to do.
In re Ayers, 123 U. S. 445.
See also forms in Gorham v. Luckett,
6 B. Mon. (Ky.) 639; Young v. Cannon,
2 Utah 576.
255
Volume 5.
6193. CONTEMPT. 6194.
Form No. 6193.'
At a Special Term of the Supreme Court, held at the Kings County
Court-house in the City of Brooklyn on the third day of January, i882.
Present: Hon. Jasper V. Gilbert, Justice.
John 1). JVegus ^1
T<I ST*. * T> z.7 TL z? 1.1 z?7 t j \ Order for Attachment.
The City of Brooklyn, The Brooklyn Elevated {
Railway Company and others.
On reading and filing the affidavits of David Barnett and Edward
J. Bergen, and the injunction order therein referred to and annexed
thereto, showing the violation of the injunction heretofore made in
this action by the members of the common council of said city of
Brooklyn and aldermen of said city, to wit, William Dwyer, John
McCarty, James Kane, James Weir, Jr., Daniel O'Connell, Philip
Casey, James Donovan, William J. LePine, Felix W. Doyle, William
Allison, Philip Schmitt, William H. Waters, Thomas Bowers, Richard
S. Roberts, Benjamin B. Seaman, Patrick J. Kelly and Thomas R.
Armitage, which injunction was made herein on the twenty-sixth day
of December last past, and which injunction was duly served on the
persons above named ; now, on motion of Herbert G. Hull, attorney
for the plaintiff, it is hereby ordered and directed, that an attachment
as for a contempt for disobedience of the said injunction order, be
issued to the sheriff of the county of Kings against each and every
of the following named members of the common council of the city
of Brooklyn, and aldermen of said city, to wit, William Dwyer, John
McCarty, James Kane, James Weir, Jr. , Daniel O'Connell, Philip Casey,
James Donovan, William J. Le Pine, Felix W. Doyle, William Allison,
Philip Schmitt, William H. Waters, Thomas Bowers, Richard S. Roberts,
Benjamin B. Seaman, Patrick J. Kelly and Thomas R. Armitage; and
that the said attachment be returnable at a special term of this court
to be held at the court-house in the city of Brooklyn on the third day
of January, i882, at ten o'clock in the/0raioon of that day.
And it is further ordered, that each and every of the said persons,
to wit, William Dwyer, John McCarty, James Kane, James Weir, Jr. ,
Daniel O'Connell, Philip Casey, James Donovan, William J. Le Pine,
Felix W. Doyle, William Allison, Philip Schmitt, William H. Waters,
Thomas Bowers, Richard S. Roberts, Benjamin B. Seaman, Patrick J.
Kelly and Thomas R. Armitage, be held to bail on said attachment
in the sum of two thousand dollars each.
Enter: /. W. G.
b. Attachment Writ.
(1) IN GENERAL.
Form No. 6194.
The State of Delaware.
Kent County, ss.
To the Sheriff of Kent County, Greeting:
(SEAL) We command you that you attach Richard Roe, late of
1. This form is copied from the record in People v. Dwyer, go N. Y. 402. See
Birds. Rev. Stat. N. Y. (1896), p. 631, 5, and statutes cited supra, note i, p. 228.
256 Volume 5.
6195. CONTEMPT. 6196.
Kent county, if he shall be found in your bailiwick, so that you have
his body before our judges, at Dover, at our Superior Court forthwith,
to answer unto our judges of a certain contempt by him committed,
and further to abide and perform such order as our said court
shall then and there consider of him in this behalf, etc., and therefore
fail not. And have you then there this writ with your doings
thereon indorsed, etc.
Witness, the Honorable Edward W. Gilpin, Esquire, chief justice
of our said court, at Dover, the twenty-fourth day of February, in the
year of our Lord one thousand eight hundred and ninety-eight.
John Hancock, Prothonotary.
Form No. 6195.
(82 Me. 6o6.)
(SEAL) State of Maine.
To the Sheriffs of our Counties and their Deputies:
We command you to attach the body of John Doe, of Paris, in our
county of Oxford, so that you have him before our Supreme Judicial
Court, at Paris, within and for our county of Oxford, on \hzfourth
Tuesday of April next, to answer for an alleged contempt in not (Here
insert the cause), and you may take a [bond with sufficient sureties to
Richard Roe, the party injured, in the sum of one thousand dollars,
conditioned that he then and there appear and abide the order of
court.] 2 Hereof fail not and make due return thereof and of your
proceedings, at the time and place aforesaid.
Witness, James Smith, justice of our said court, the eighteenth day
of March, in the year of our Lord iB96.
George Jones, Clerk.
Form No. 6196.
(Precedent in In re Wood. 82 Mich. 76.)*
State of Michigan, \
County of Wayne. \
(SEAL) In the Circuit Court for said County.
To the Sheriff or any Deputy Sheriff of Wayne County, Greeting:
Whereas, it has been made to appear to said circuit court, by return
of the officer duly made, that E. T. Woodvra.s duly served with an
order of said court citing him to appear before said court on Wednes-
day, the 4th day of June, iS90, at 9:30 o'clock A. M., to show cause
why he should not be punished for contempt of court, and the hear-
ing of said matter being continued until 2 P. M. of said June 4, at
which time said respondent was ordered to appear in court, and E. T.
Wood has made default in obeying the command of said order:
Now, therefore, you, and each of you, are hereby commanded, in
the name of the people of the State of Michigan, forthwith to appre-
1. Form is also set out in 37 Me. 595. charged on habeas corpus, as the con-
2. Where the party is not bailable, tempt was not committed within the
that part of the writ enclosed by [ ] view of the court and the proceedings
should be omitted. were not commenced by affidavit. The
3. In this case the petitioner was dis- form of the writ, however, is good.
5 E. of F. P. 17. 257 Volume 5.
a,)
,. f ss -
6197. CONTEMPT. 6199.
hend said E. T. Wood, and bring him before the said court to be dealt
with according to law; and you are further commanded to detain, in
the manner prescribed by law, the said E. T. Wood, until he shall be
discharged by said circuit court, and of this writ make due return.
Witness, the Honorable H. N. Brevoort, Presiding Judge, on the
4th day of June, A. D. i890.
Wm. P. Lane,
Clerk of the Circuit Court for the County of Wayne.
By Wm. May, Dp. Clk.
Form No. 6197.
(Minn. Stat. (1894), 5092.)
State of Minnesota,
County of Ramsey.
The State of Minnesota.
To the sheriff or constable of said county:
You are hereby commanded to apprehend John Doe, and bring him
before Abraham Kent, one of the justices of the peace of said county,
at his office in said county, to show cause why he, the said John Doe,
should not be convicted of a criminal contempt alleged to have been
committed on the eighteenth day of January, A. D. iS98, before the
said justice, while engaged as a justice of the peace in judicial
proceedings.
Dated this twentieth day of January, A. D. iB98.
Abraham Kent, justice of the peace.
Form No. 6198.
(Precedent in Matter of Sloan, 5 N. Mex. 637.)
The Territory of New Mexico to the sheriff of Santa Fe county,
greeting:
You are hereby commanded to arrest and take the body of John
H. Sloan, and him safely keep, so that you have his body before the
district court within and for the county of Santa Fe, sitting at
chambers at the federal building in said county, on Monday, January
19, i&91, at nine o'clock A. M., then and there to answer for a charge
of contempt.
Witness, the Honorable Edward P. Seeds, associate justice of the
supreme court of the territory of New Mexico, and judge of the First
judicial district court thereof, and the seal of said district court, this
17th day of January, iS91.
A. E. Walker, Clerk. (SEAL)
Form No. 6 199.
(Hill's Anno. Stat. Wash. (1891), IOO5.) 1
The State of Washington, \
King County. f
To the Sheriff or any constable of said County:
In the name of the state of Washington, you are hereby commanded
to apprehend John Doe, and bring him before Abraham Kent, one of
1. The same form is set out in Sanb. & B. Anno. Stat. Wis. (1889), 3578.
258 Volume 5.
6200. CONTEMPT, 6201.
the justices of the peace of said county, at his office in said county,
to show cause why he should not be convicted erf a contempt alleged
to have been committed on the sixth day of January, A. D. i&98,
before the said justice, while engaged as a justice of the peace
in a judicial proceeding.
Dated this tenth day of January, A. D. i8P<P.
Abraham Kent, Justice of the Peace.
(2) FOR CONTEMPT BEFORE ARBITRATORS.
Form No. 6200.
(Pepp. & L. Dig. Pa. (1895), p. 180, 53.)
Cumberland County, ss.
The Commonwealth of Pennsylvania.
To the constable of Carlisle. We command you, that you take
Richard Roe, late of your county, aforesaid, and have him forthwith
before Samuel Short, William West and Leonard A. Ford, arbitrators
(or referees) appointed to hear and determine all matters in variance
in a certain action, wherein John Doe is plaintiff and Joseph Hunt
defendant, at the house of Samuel Short, in Carlisle, then and there
to answer to such matters and things as shall be objected against
him, and not depart without leave.
Witness my hand, this twenty-fifth day of February, A. D. iB98.
Samuel Short. \
William West. v Arbitrators.
Leonard A. Ford. )
(3) FOR CONTEMPTUOUS AFFIDAVIT FOR CHANGE OF VENUE.
Form No. 6201.
(Precedent in Hughes v. People, 5 Colo. 437.)
State of Colorado, \
Clear Creek County, j"
The People of the State of Colorado to the Sheriff of Clear Creek
County, Greeting:
We command you to take William T. Hughes, and him safely keep,
so that you have his body forthwith before our county court of Clear
Creek County at a term now being held at the court in Georgetown
for probate matters, to answer us for und concerning a contempt of
our said court, in this, to wit: on the 24th day oi June, i87#, in the
district court in and for said county, at the regular June term thereof,
A. D. i87#, in a case then and therein pending, wherein Daniel Ernst,
administrator of the estate of Jenny Akin, against William T. Hughes,
William J. Hurd and Frank X. Aicher; after the trial of said case by
said district court, the following order was therein entered by said
district court, to wit: (Jfere was set out a copy of the order.)*
1. The order was as follows: John A. Coulter, and this cause came
" Now, at this day comes the plain- on to be heard, and is submitted to the
tiff, by his attorney, G. G. White, and court without a jury, and after hearing
the said defendants, by their attorney, all the testimony, and the court being
259 Volume 5.
6201. CONTEMPT. 6201.
That afterwards, to wit, on the 15th day of July, i879, a copy of
the said order was filed in the said county court.
That afterwards, on the 5th day of August, A. D. i879, by order of
the attorney of the estate of said Jenny Akin, a citation, under the
hand and seal of said county court, was duly issued, requiring the
said defendants, Wm. T. Hughes, Wm. J. Hurd, Frank X. Aicher and
Charles H. Martin, to be and appear before said county court on the
6th day of August, i&79, then and there to show cause, if any they
may have, why they, and each of them, should not comply with the
judgment and order of said district court; and that said William T.
Hughes show what amount, if any, he has paid out on account of said
estate. Which said citation was duly served upon said Wm. T.
Hughes, by the sheriff of Clear Creek county, on the day of the date
hereof; and on said Frank X. Aicher, on the 6th day of August, iS79,
and on said last day duly returned in court.
That upon last said date the said Wm. T. Hughes failed to appear
in said county court in person, but did appear by John A. Coulter, Esq.,
his attorney; and upon information received by this court from the
said John A. Coulter, as such attorney, the court, of its own motion,
continued the time for the appearance of the said Wm. T. Hughes to
answer concerning said citation until Thursday, the 7th day of August,
A. D, iS79, at 2 o'clock P. M. of said day. And on the said 7th day of
August, A. D. i&79, at 2 o'clock P. M., and for more than one hour
thereafter, the said Wm. T. Hughes still failed to personally appear
before said court in obedience to said citation, and the order extend-
ing the time of appearance of said Hughes in respect thereto; but the
said John A. Coulter, attorney, did appear for the said William T.
Hughes, and presented to the court to be filed, the pretended answer
of the said William T. Hughes, in words and figures following: (Here
was set out the answer in full r .) 1
sufficiently advised in the matter, it is of them, have had, or may have, in
ordered by the court that the defend- their possession or under their control,
ants, W. T.Hughes, Wm.J. Hurd a.n& belonging to said estate. It is further
Frank X. Aicher, deliver to the said ad- ordered that the said William T.
ministrator all and singular the goods Hughes pay into said county court the
and chattels belonging to the said es- sum of nineteen dollars, received by
tate, viz: one bedstead, one bureau, him from the sale of personal property
one commode, one rocking chair, one belonging to said estate, and had and
heating stove, one dining table, one received by him from said estate, ex-
meat safe, one wash bowl, one bed cept as to such amount as he may have
spring, one mattress, one bolster, two paid out on account of said estate, and
pillows, two bed spreads, three com- for which he will account to said county
forts, and all other articles of personal court, and that the said defendants pay
property that they and each of them the costs of this appeal and all other
have in their possession, or under their proceedings had herein; and that the
control; and it appearing that Charles order be certified by the clerk of this
H. Martin has in his possession certain court to the said county court, and the
property belonging to said estate: one same be there enforced as the law
trunk and contents, one wash bowl and directs."
other articles, it is ordered that he de- 1. The answer was as follows:
liver the same to said administrator, "The defendant, in response to the
and that the said defendants and the citation issued by the judge of the
said Martin are hereby required to ac- county court, within and for the county
count to the county court of this county of Clear Creek, Colorado, on the ^th day
for all personal property they, or any of August, A. D. 1879:
260 Volume 5.
6201.
CONTEMPT.
6201.
That during the same session of said court, the said Hughes still
being absent therefrom, the said John A. Coulter, his attorney, pre-
I.
That on the 26th day of June, 1879,
an order was made and entered of rec-
ord in the district court, within and for
the county of Clear Creek, Colorado,
against William T. Hughes, William J.
Hurd, Frank X. Aicher and Charles H.
Martin, and in favor of Daniel Ernst,
administrator of the estate of Jenny
Akin, deceased, ordering these defend-
ants to turn over certain goods and to
pay over certain moneys in said order
specified; and it was further ordered by
the district court, that these defendants
have thirty days to file their bill of ex-
ceptions in said cause.
That the defendants, to wit: on the
$oth day oijune, A. D. 1879, the said
Daniel Ernst, administrator of the es-
tate of Jenny Akin, deceased, com-
promised, released and discharged, and
received in accord and satisfaction the
goods in the possession of William J.
Hurd, one of the above named defend-
ants, which said compromise, release
and discharge is in words and figures
as follows, to wit:
' Daniel Ernst, admin., \
v. > No. 2,138.
W. T. Hughes et al. )
Plaintiff and defendants hereby com-
promise all matters in dispute in this
cause, and defendants agree to turn
over to plaintiff all goods of the estate
of Jenny Akin, now in the possession
of William J. Hurd, and law the same
no farther, for which plaintiff agrees to
absolve them from all existing and
further liabilities of whatsoever kind
and nature, and the defendants be fully
acquitted of the same.
June jo, 1879.
Daniel Ernst.
W. T. Hughes,
For Defendants.'
That defendants did, on the joth day
of June. 1879, fu^y perform their agree-
ments and undertakings, in accordance
with the above agreement, and did then
and there deliver the goods mentioned
in the said release and discharge to the
said Daniel Ernst, administrator afore-
said, and that said release and dis-
charge was made a part and parcel of
the records of the district court of Clear
Creek County, Colorado.
That the defendants, relying and be-
lieving that said release and discharge,
after their compliance with the same,
would wholly absolve them from any
further or other liability in the prem-
ises, and that the same were made in
good faith, allowed the time for filing
bill of exceptions and" making up the
record in the said district court within
and for the county of Clear Creek, Colo-
rado, to pass without filing the same.
These defendants further state that
said Daniel Ernst, administrator afore-
said, had full notice of the above
release and discharge, and the per-
formance thereof on the part of these
defendants, and did duly accept the
terms and conditions of the same.
And these defendants further state,
that the judge of the county court within
and for the county of Clear Creek, Colo-
rado, had notice of the release and dis-
charge as aforesaid, at or about the
time that the same was executed by the
said Daniel Ernst, administrator as
aforesaid, and further charge, upon in-
formation and belief, that G. G. White,
attorney of the estate of Jenny Akin,
had notice of the release and discharge
of these defendants, on or about the
time that said Daniel Ernst, admin-
istrator as aforesaid, executed and
performed the conditions of said agree-
ment; and further charged, upon in-
formation and belief, that the said
county judge and G. G. White, the at-
torney for said estate, and Daniel
Ernst, administrator aforesaid, purpose
and intentionally acquiesced in the re-
lease and discharge given by Daniel
Ernst, administrator aforesaid, until
the time for perfecting the record of
the case in the district court had ex-
pired, and thus gained an unjust and
undue advantage by these further pro-
ceedings in said cause.
John A. Coulter,
Attorney for Defendants.
State of Colorado, \
Clear Creek County. \ S
W. T. Hughes, of lawful age, being
first duly sworn, on oath states that he
has read the foregoing answer and
knows the contents of the same, and
that the same are true of his own
knowledge, excepting those matters
stated on information and belief, and
as to those matters, he believes the
same to be true. W. T. Hughes.
Subscribed and sworn to before me
this August 6, 1879.
Arthur D. Bullis, Notary Public."
261
Volume 5.
6202. CONTEMPT. 6202.
sented to the court the affidavit of said W. T. Hughes, stating causes
for a change of venue of said case, which affidavit of said William T.
Hughes is in words and figures following, to wit: {Here was set out
the affidavit in full.}*
Whereupon, upon information imparted to said court, the time for
appearance of said Hughes, under the said citation, was extended to
August 11, 1 879, at 10 o'clock A. M.
Such contempt consisting in
First. The failure of said Hughes to personally appear as required
by said citation.
Second. The allegations in said answer, sworn to by said Hughes,
contained in the eight last lines of said answer, are disrespectful to
the judge of said county court, untrue, scandalous and impertinent.
Third. The affidavit of said Hughes, stating causes for a change of
venue of said case, contained grossly scandalous, untrue and imperti-
nent allegations and outrageously insulting imputations against the
said county court and the judge thereof.
And have you then and there this writ, with an indorsement show-
ing how you have executed the same.
Witness, J. C. McCoy, Judge of said court, and the seal thereof, at
Georgetown, this 12th day of August, A. D. i87P.
(SEAL) J. C. McCoy, County Judge.
(4) FOR CONTEMPTUOUS PUBLICATION. 2
1. The affidavit was as follows: county judge as aforesaid, is so preju-
" State of Colorado, \ In County diced against this affiant, as to inca-
Clear Creek County. ) SS ' Court. pacitate him from doing this affiant
Daniel Ernst, administrator, etc., ~\ justice in any cause in which this affiant
v. is a party or has any interest what-
William T. Hughes, William J. j- ever.
Hurd, Charles H. Martin and | That this bitter and disqualifying
Frank X. Aicher. enmity has existed over a year last
William T, Hughes, being duly sworn past, and was greatly increased after
according to law, on oath states that he the sitting of the grand jury at the June
is one of the above named defendants term of the district court, before whom,
in the above entitled cause. That he as is said, certain charges were pre-
fears that he cannot have a fair and ferred against John C. McCoy, accusing
impartial hearing or trial before John C. him of taking and securing a bribe
McCoy, county judge within and for the from one G. G. White, in a cause pend-
county of Clear Creek, Colorado, where ing in said county court, the preferring
the above entitled action is pending, of which charges the said John C. Mc-
because Coy charges affiant of being chief and
As affiant is informed and believes, instrumental in bringing about,
and therefore charges the fact to be, For these and other reasons, affiant
that the said John C. McCoy, county says that a fair and impartial trial can-
judge of said county, and before whom not be had in said cause, nor of any
said action is now pending, has pre- issue arising out of the same,
judged the merits of this action against W. T. Hughes.
these defendants; and further, as affiant Subscribed and sworn to before me,
is informed, and verily believes, that this August 6, 1879.
the said/0,4 C. McCoy is interested in J. P. Post, Justice of the Peace."
the result of these proceedings; and 2. See also a form in Neel v. State, 9
further, that the said/i^w C. McCoy, Ark. 259.
263 Volume 5.
6202. CONTEMPT. 6204.
Form No. 6202.
(Precedent in People v. Wilson. 64 III: 236.)
State of Illinois, ) Northern Grand Division.
In the Supreme Court, f September Term, A. D. i87#.
The People of -the State of Illinois, to the Sheriff of La Salle County
Greeting:
Whereas, it has been made to appear that Charles^L. Wilson and
Andrew Shuman have printed and published an article, which has been
adjudged by the said court, now in session at Ottawa, in the afore-
said county and State, to have been printed and published in con-
tempt of said court while so in session as aforesaid.
We, therefore, command you, that you attach the said Charles L.
Wilson and Andrew Shuman, so as to have their bodies forthwith
before our said supreme court at Ottawa, in the county aforesaid, to
answer the said court of the said contempt, by them lately committed
against it, as it is said, and further to do and receive what our said
court shall in that behalf consider. Hereof fail not, and have you
then and there this writ.
Witness, Charles B. Lawrence, Chief Justice of said Court, and the
seal thereof, at Ottawa, this 6th day of November in the year of our
Lord one thousand eight hundred and seventy-two.
(SEAL) W. M. Taylor, Clerk of the Supreme Court.
Form No. 6203.
(Precedent in State v. Frew, 24 W. Va. 491.)
State of West Virginia.
In the Supreme Court of Appeals. June Term, i&&.
The State of West Virginia to the Sheriff of Ohio county, greeting:
Whereas it has been made to appear, that John Frew and C. B.
Hart have printed and published an article, which has been adjudged
by the said court, now in session at Wheeling, in the aforesaid county
and State, to have been printed and published in contempt of said
court while so in session, as aforesaid. We therefore command you
that you attach the said John Frew and C. B. Hart, so as to have
their bodies forthwith before our said Supreme Court of Appeals here
now in session at Wheeling in the county aforesaid, to answer the
said Court of the said contempt, by them lately committed against
it, as it is said, and further to do and receive what our said Court
shall in that behalf consider. Hereof fail not and have you then and
there this writ.
Witness the judges of said Court, and the seal thereof, this 1th day
of July, i$84.
O. S. Long,
(SEAL) Clerk Supreme Court of Appeals.
(5) FOR FAILURE TO OBEY. 1
1. Failure to Obey Order. In Cono- David Dudley Field, Esq., was, omit-
ver's Case, 5 Abb. Pr. (N. Y. Supreme ting the signature of the judge, in the
Ct.) 194, note, the warrant drawn by words following, to wit:
263 Volume 5.
6204.
CONTEMPT.
6204.
(a) Injunction.*-
Form No. 6204.'-
The People of the State of New York, to the Sheriff of Kings County,
Greeting:
We command you that you attach William Dwyer, John McCarty,
James Kane, James Weir, Jr., Daniel O'Connell, Philip Casey, James
Donovan, William J. LePine, Felix W. Doyle, William Allison, Philip
Schmitt, William H. Waters, Thomas Bowers, Richard S. Roberts, Ben-
jamin B. Seaman, Patrick J. Kelly and Thomas R. Armitage, and each
and every of them, so as to have their and each and every their
several bodies before our Supreme Court, at a special term thereof to be
held at the court-house in the city of Brooklyn on the third day of
" The People of the State of New York
to the Sheriff of the City and County
of New York :
Whereas, at the City Hall of the city
of New York, on the i8th day of June,
i8f7, complaint was made to the un-
dersigned, one of the justices of the
Supreme Court of the State of New
York, by Daniel D. Conover, setting
forth, among other things, that Josep h
S. Taylor, who was, in November, 185-5,
elected to the office of street commis-
sioner of the city of New York, to
serve for three years from January,
1856, went into his office in said Janu-
ary, and continued in office until the
qth day of June, 1857, when he died;
that the said Conover was, on the isth
day of said June, duly appointed and
commissioned to fill the vacancy in
said office occasioned by the death of
the said Taylor, and had duly qualified
himself, and was then the successor to
said office; that books, maps, papers
and documents belonging and apper-
taining to the said office had come to
the hands of Charles Devlin; that the
said Conover had demanded the said
books, maps, papers and documents
from the said Charles Devlin, and that
the said Devlin had withheld them,
and refused to deliver them to the
said Conover, and asking that the said
Devlin might be ordered to show cause
before the undersigned why he should
not be compelled to deliver the said
books, maps, papers and documents
to the said Conover. And whereas, be-
ing satisfied by the oath of the said Con-
over that the said books, maps, papers
and documents were withheld, the un-
dersigned granted an order directing
the said Devlin to show cause before
the undersigned, on the 2jd day of
said/<r, at the chambers of the jus-
tices of said court, in the City Hall of
the city of New York, why he should
not be thus compelled; and whereas,
at the time and place so appointed the
said Conover and the said Devlin ap-
peared before the undersigned, and due
proof having been made of the service
of the said order, the undersigned pro-
ceeded to inquire into the circum-
stances, which inquiry was continued
before the undersigned from day to
day until this day, the matter having
been regularly thus adjourned, and the
said Devlin, not having made oath that
he has truly delivered to the said Cono-
ver the said books, maps, papers and
documents, and it appearing to the un-
dersigned that the said books, maps,
papers and documents are still with-
held, and that the said Devlin omits
and refuses to deliver up the same,
these presents are therefore to com-
mand you, the sheriff of the city and
county of New York, and you are
hereby commanded, to take the body
of the said Charles Devlin, and commit
him to the jail of the city and county of
New York, there to remain until he
shall deliver such books, maps, papers
and documents, or be otherwise dis-
charged according to law.
In witness whereof, I have hereto
set my hand and seal, at the City Hall
of the city of New York, this ninth day
oijuly, in the year of our Lord one
thousand eight hundred and fifty-
seven ."
1. See also forms in Stimpson v. Put-
nam, 41 Vt. 238.
2. This form is copied from the rec-
ord in People v. Dwyer, 90 N. Y. 402.
See Birds. Rev. Stat. N. Y. (1896), p. 631,
5, and list of statutes cited supra, note
i, p. 228.
264
Volume 5.
6205. CONTEMPT. 6206.
January, i%82, at ten o'clock in the/0/rnoon of said day, there to
answer us as well touching the contempt which they and each of
them as alleged have committed against us, as also such other
matters as shall be laid to their and each of their charge, and further
to perform and abide such order as our said court shall make in this
behalf.
And have you then and there this writ and make and return a certifi-
cate under your hand of the manner in which you shall have executed
the same.
Witness, Hon. Jasper W. Gilbert, one of the justices of our court, at
the court-house in the city of Brooklyn, on the third day of January,
(SEAL) Chas. B. Elliott, Clerk.
H. G. Hull, Attorney for Relator, John D. Negus.
() Mandamus.
Form No. 6205.
(Precedent in People v. Pearson, 4 111. 272.)
State of Illinois, Supreme Court:
The People of the State of Illinois, to any and all Sheriffs of all Coun-
ties of the State of Illinois, Greeting: 1
We command you, and each of you, that you take the body of
John Pearson, and that you have him before the Supreme Court
of the State of Illinois, at Springfield, forthwith, to answer for a
contempt of said court, in refusing to obey a peremptory mandamus
issued out of the said court, and to him directed and delivered, and
have you then and there this writ.
Witness, William Wilson, chief justice of our said Supreme Court at
Springfield, this tenth day of June, A. D. 1840.
(SEAL) J. M. Duncan, Clerk S. C.
Per /as. H. Matheny, D. C.
(f) Order.
Form No. 6206.
(i N. Car. Code (1883), p. 352, No. 13.)
John Doe }
against > Justice's Court.
Richard Roe. )
State of North Carolina, to any constable or other lawful officer of
Nash county, Greeting:
Whereas, it appears that Samuel Short was duly served on the six-
teenth day of February, 1 898, with an order issued by Abraham Kent,
Esq., one of our justices of the peace for said county, requiring said
Samuel Short to attend before said justice at his office, in said county,
on the twenty-third day of February, i898, and be examined on oath
1. Address. It was held in this case any and all sheriffs of all counties of the
that an attachment from the supreme state of Illinois."
court for contempt may be directed " To
265 Volume 5.
6207. CONTEMPT. 6207.
concerning a certain debt owing to the defendant named in the
above action, by the said Samuel Short (or property held by the said
Samuel Short for the benefit of the defendant).
And whereas, the said Samuel Short, in contempt of said order, has
refused or neglected, and doth still refuse or neglect, to appear and
be examined on oath as in said order he is required to do;
Now, therefore, we command you that you forthwith attach the
said Samuel Short, so as to have his body before Abraham Kent, Esq.,
one of our justices of the peace for your county, on the twenty-sixth
day of February, iS98, at his office in said county, then and there to
answer, touching the contempt which he, as is alleged, hath com-
mitted against our authority; and further, to perform and abide by
such order as our said justice shall make in his behalf. And have
you then and there this writ, with a return, under your hand, of your
proceedings thereon.
Hereof fail not at your peril.
Witness, our said justice, this twenty-third day of February, i898.
Abraham Kent, Justice of the Peace.
(a) Subpoena.
aa, IN CIVIL CASE.
(aa) Before Court of Record.
Form No. 6207.'
The State of Alabama. \ Circuit Court,
Jefferson County. f April Term, iS96.
To any Sheriff of the State of Alabama Greeting:
It having been made known to the court by competent evidence
that heretofore, viz: on the tenth day oiAfrt/,,i&96,a. subpoena issued
out of this court directed to John Livingston commanding him to
appear at the present term of this court to give evidence in behalf
of the plaintiff in a case now pending in this court wherein John Doe
is the plaintiff and Richard Roe is the defendant. And it appearing
to the court by the return of the sheriff on said subpoena indorsed,
that the said John Livingston was duly served with a copy of said sub-
poena; and it further appearing that said John Livingston has wilfully
refused to appear and testify, as by said subpoena he was required;
and wilfully and without good excuse refuses to appear in obedience
to said subpoena. You are, therefore, hereby commanded to arrest
the said John Livingston and him safely keep, unless he give bond in
the sum of five hundred dollars, so that you have him before this
court on the twentieth day of April, iS96.
Herein fail not, and show by your return how you have executed
this process.
Witness my hand, this the eleventh day of April, iS96.
Richard Fleming, Clerk.
1. Alabama. Civ. Code (1886), | 756, subs. 4. See also statutes cited supra,
note i, p. 228.
266 Volume 5.
6208. CONTEMPT. 6210.
Form No. 6208.
(Sand. & H. Dig. Ark. (1894), p. 1630, No. 49.)'
The State of Arkansas to the Sheriff of Pulaski County:
You are commanded to arrest George Morgan and have him before
the Pulaski Circuit Court on the fourth day of its next {March} term,
which will be on Thursday, the third day of March, \W8, as well to
testify in behalf of the plaintiff in an action in said x:ourt between
Richard Roe, plaintiff, and John Doe, defendant, as to answer for
contempt of said court; and you will admit him to give bail for his
appearance in the sum of one hundred dollars.
(SEAL) Witness my hand and the seal of said court this tenth day
of January, iS98.
John Hancock, Clerk.
Form No. 6209.*
In the District Court of the First Judicial District of the State of
Idaho, in and for the County of Shoshone.
The People of the State of Idaho, to the Sheriff of the County of
Shoshone, Greeting:
You are hereby commanded, forthwith, to attach the body of
Richard Roe and bring him before the District Court of said county,
to show cause, if any he has, why he should not be adjudged in con-
tempt for failing to attend and serve as witness in said court, after
being personally served with a subpoena to attend.
Witness, Hon. John Marshall, judge of the District Court, this
twenty- fourth day of February, i&98.
(SEAL) John Hancock, Clerk.
Form No. 6210.*
In the name of the People of the State of Michigan.
(SEAL) To the Sheriff of the County of Wayne:
We command you to attach Leonard A. Ford and bring him forth-
with personally before the Circuit Court for the county of Wayne to
answer to said court for a certain contempt in not obeying a certain
writ of subpoena, issued out of the said court, and to him directed,
and on him duly served, commanding him to appear on Monday, the
eighth day of September, iB96, at the city of Detroit, before the said
court, to testify and give evidence in a certain cause then to be tried
between John Doe, plaintiff, and Richard Roe, defendant, on the part of
the defendant. And you are further commanded to detain the said
Leonard A. Fordin. your custody until he shall be discharged by the
said Circuit Court. And have you there then this writ.
Witness, the Honorable R. E. Freezer, circuit judge, at the city of
Detroit, this eighth day si September, in the year of our Lord one thou-
sand eight hundred and ninety-six.
John Hancock, Clerk.
1. Arkansas. Sand. & H. Dig. See statutes cited supra, note i, p. 228.
(1894), 2944. See also statutes cited 3. Michigan. How. Anno. Stat.
supra, note i, p. 228. (1882), 7257, subs. 5, 7483. See also
2. Idaho. Rev. Stat. (1887), 5158. statutes cited supra, note i, p. 228.
267 Volume 5.
6211. CONTEMPT. 6213.
Form No. 6211.'
The State of Mississippi to the Sheriff of De Soto County in said
State:
You are hereby commanded to take the body of John Livingston, if
to be found in said county, and have him before the Chancery Court
of the county of De Soto in the state aforesaid, at the court-house in
the town of Hernando in said De Soto county, on the tenth day of May,
A. D. i895, at eleven o'clock A. M., to testify for \.\\z plaintiff in the
case of John Doe against Richard Roe, No. 183. But if said John Liv-
ingston shall furnish bail, with sureties, to be approved by you, in the
sum of five hundred dollars, for his appearance as above required, you
will discharge him. 2
And have there then this writ.
Given under my hand and seal of said court, and issued this the
second day of May, A. D. iS95.
(SEAL) Charles Fleming,
Chancery Clerk, De Soto County, Miss.
Form No. 6212.*
In the District Court of the Fourth Judicial District of the State of
Montana, County of Missoula, ss:
The People of the State of Montana to the Sheriff of said Missoula
County, Greeting: 4
You are hereby commanded forthwith to attach the body of Leonard
A. Ford, defaulting witness, and have him before our said court on
Monday, the twenty-first day of February, A. D. i898, then and there
to show cause why he should not be punished for contempt in dis-
obeying the mandate of said court.
Witness, the Hon. John Marshall, judge, and the seal of said court,
this fourteenth day of February, A. D. \W8.
(SEAL) Attest: John Hancock, Clerk.
Form No. 6213.*
State of Rhode Island and Providence Plantations.
Providence, sc.
Court of Common Pleas, May Term, A. D. iS93.
To the Sheriff of said County or to his Deputy, Greeting:
Whereas, at our said court, now holden at Providence, within and
for said county, at its present term, John Livingston has been duly
summoned to appear before our said court, to give evidence of what
1. Mississippi. Anno. Code (1892), the state. Miss. Anno. Code (1892),
506. See also statutes cited supra, 3454.
note i, p. 228. 3. Montana. Code Civ. Proc. (1895),
2. Bond for Appearance. The court 2173, 3306, 1650, subs. 4.
shall, on ordering the attachment, 4. Address. The warrant must be
direct whether the witness shall enter directed to the sheriff of the county
into bond for his appearance, and in where the witness may be. Mont,
what sum, and whether with or without Code Civ. Proc. (1895), 3309.
sureties, which bond the sheriff or other 5. Rhode Island. Gen. Laws (1896),
officer by whom the attachment is exe- c. 221, 6. See also statutes cited
cuted is authorized to take, payable to supra, note I, p. 228.
268 Volume 5.
6214. CONTEMPT. 6215.
he knows relative to a certain cause now pending between John Doe,
plaintiff, and Richard Roc, defendant, and has, in contempt of our said
court, and to its great hindrance and delay, neglected and refused to
appear to testify in said case:
We therefore command you to attach the body of the said John
Livingston and have him forthwith before our said court to testify in
relation to said case, and likewise to abide the order and determina-
tion of our said court for his contempt of its process.
Witness, Hon. Thomas Durjee, chief justice of our Supreme Court,
at Providence, this third day of May, A. D. iS93.
Charles Edwards, Clerk.
Form No. 6214.'
The State of Tennessee to the Sheriff of Maury County, Greeting:
Whereas, in our Circuit Court for Maury county, an action is pend-
ing wherein John Doe is plaintiff and Richard Roe is defendant, and
whereas, it appears to the court from the affidavit of the said John Doe,
and from an inspection of the subpoena, that John Livingston has been
regularly summoned to appear at the January term of our said court, to
testify on behalf of the said John Doe in said action; and it further
appearing to the court that said John Livingston has failed to obey said
summons, in contempt of court: It is therefore ordered, that an attach-
ment issue for the body of the said John Livingston.
You are hereby commanded to have the body of the said John
Livingston before the judge of our said court to give evidence as hereto-
fore commanded, and answer for contempt. Herein fail not.
Witness, George Smith, clerk of said court, at office in Columbia, this
second Monday in January, i&93, and of American independence the
one hundred and seventeenth year.
Charles Jones, Clerk.
Edward Smith, D. C.
(bb) Before Justice of Peace.
Form No. 6215.
(Sand. & H. Dig. Ark. (1894), p. 1630, No. 50.)*
The State of Arkansas to any Constable of Pulaski County:
You are commanded to arrest George Morgan and have him before
me at my office in Little Rock, on the tenth day of January, i&94, as well
to testify in behalf of the plaintiff in an action pending before me
between Richard Roe, plaintiff, zn& John Doe, defendant, as to answer
for contempt; and you will admit him to give bail for his appearance
in the sum of one hundred dollars.
Given under my hand \h\sfirst day of January, i&94-
Thomas Mason, J. P.
1. Tennessee. Code (1896), 5918, 2. Arkansas. Sand. & H. Dig.
subs. 4. See also statutes cited supra, (1894), 2944. See also list of statutes
note I, p. 228. cited supra, note I, p. 228.
269 Volume 5.
62 1 6. CON TEMP T. 62 1 8.
Form No. 6216.'
State of Indiana, \
St. Joseph County, j s '
The State of Indiana, to John Smith, constable of Portage Township:
Whereas, it appears to the satisfaction of the undersigned, a jus-
tice of the peace of said township, that John Doe was, on the
eighteenth day of May, \%95, duly served with a subpoena to appear
at my office at eleven o'clock forenoon of the twenty -seventh day of
May, i&95, and testify in a certain complaint then pending before
me, between Edward Rice and Richard Roe, and that he neglected to
attend as such witness in conformity to said subpoena; you are there-
fore hereby commanded to attach the body of said John Doe and him
forthwith bring before me, to answer to his alleged contempt in so
disobeying said writ as aforesaid. And of this attachment make due
return.
Given under my hand and seal, this twenty-eighth day of May, iS95.
Charles Fleming, (SEAL)
bb. IN CRIMINAL CASE.
(aa) Before Court,
Form No. 6217.*
In Circuit Court ' Second J udicial Circuit.
The State of Florida }
against
John Doe. )
To the Sheriff of Leon County, Greeting:
We command you that you attach John Livingston so that you have
his body before the honorable the judge of the Circuit Court for said
county, instanter, to answer us as well of a certain contempt by him
to us offered in failing to attend the said court at the spring term,
i&96, as a witness in behalf of the state in the above entitled cause
(as in the last summons), as upon those things to do and receive
what our said court shall consider just and proper in the premises.
And have you then and there this writ.
Witness the Honorable George Reynolds, judge, as also Edward Rice,
clerk, and the seal of said court, at the court-house at Tallahassee,
Florida, this tenth day of April, A. D. iS96.
(SEAL) Edward Rice, Clerk.
(bti) Before Grand Jury.
Form No. 6218.*
The State of Mississippi to the Sheriff of De Soto County, in said
State :
You are hereby commanded to take the body of Edward Rice, if to
1. Indiana. Horner's Stat (1896), 975, 976. See supra, note I, p. 228.
1436. See also statutes cited supra, 3. Mississippi. Anno. Code (1892),
note I, p. 228. 3457- See also statutes cited supra,
2. Florida. Rev. Stat. (1892), note i, p. 228.
270 Volume 5.
62 1 9. CON TEMP T. 6219.
be found in your county, and have him before the grand jurors of the
state of Mississippi, impaneled for the May term,. A. D. iS97, of the
Circuit Court of the county of De Soto, in the state aforesaid, at
the court-house, in the town of Hernando in said De Soto county, on
the fifth day of June, i897, at eleven o'clock A. M., to testify concerning
any matters upon which he may be legally examined. But if the said
Edward Rice shall furnish bail, with sureties, to be approved by you,
in the sum of five hundred dollars, for his appearance at said time and
place, you will discharge him. 1
And have there then this writ.
Given under my hand and the seal of said court, and issued this
the twenty-eighth day of May, 1 897.
Daniel Webster,
Circuit Clerk, De Soto County, Miss.
(cc) Before County Attorney in Liquor Case.
Form No. 6219.*
The State of Kansas to Charles Johnson, Sheriff of Linn County, in
said State, Greeting:
Whereas, on the tenth day of April, A. D. iS96, it having become
my duty as county attorney of said Linn county, in the state of
Kansas, because of due notification to me theretofore duly given of a
certain violation of the act of the legislature of the state of Kansas
entitled "An Act amendatory and supplemental to chapter 128 of the
Session Laws of 1881, being an act entitled 'An Act to prohibit the
manufacture and sale of intoxicating liquors, except for medical,
scientific and mechanical purposes, and to regulate the manufacture
and sale thereof for such excepted purposes,' " approved March 7,
1885, to diligently inquire into the facts of such alleged violation of
said act, and having reason to believe that one Richard Roe of said
county had information and knowledge of said alleged violation of
said act, I did, as such county attorney, duly sign and issue my cer-
tain subpoena as by said act in such cases provided, directed to the
sheriff of said Linn county, thereby requiring and commanding the
said Richard Roe to appear before me at the county court-house in
said county on the twenty-second day of April, A. D. iS96, at eleven
o'clock A. M. of said day, then and there to testify before me con-
cerning said violation of said act, which said subpoena was delivered
by me forthwith to said sheriff, and was by him duly served upon said
Richard Roe, at said Linn county, on the said tenth day of April, A. D.
1 896, as by return thereof to me by said sheriff fully appears; and
the time so fixed for his said appearance having fully passed, and
said Richard Roe having wholly failed to attend before me as he was
as aforesaid required and commanded, and no excuse for said dis-
obedience to said subpoena appearing:
These are therefore to command you that you do forthwith arrest
the said Richard Roe and bring him before me at the county court-
1. See supra, note 2, p. 268. 2. Kansas. Gen. Stat. (1889),
2435-
271 Volume 5.
6220. CONTEMPT. 6220.
house in said Linn county, on the twenty-ninth day of April, A. D.
1 896, at eleven o'clock A. M., to give his testimony and be examined
as aforesaid, and to answer for his said contempt in disobeying my
said subpoena. And have you then and there this writ, with your
due and proper return thereof.
Witness my hand at Mound City, Potose township in said Linn
county, in the state of Kansas, this twenty-second day of April, A. D.
x80&
Ralph Anderson,
County Attorney of Linn County, Kansas.
cc. BEFORE UNITED STATES SENATE.
Form No. 6220.
(Precedent in Sanborn V. Carleton, 15 Gray (Mass.) 399.)'
By authority of the Senate of the United States, in the Senate of the
United States.
To Dunning R. McNair, sergeant at arms of the senate of the United
States:
Whereas F. B. Sanborn, of Concord in the State of Massachusetts,
was on the sixteenth day of January, A. D. i860, duly summoned to
appear and testify before the select committee of the senate " to in-
quire into the facts attending the late invasion and seizure of the
armory and arsenal of the United States at Harper 's Ferry in Virginia
by a band of armed men," and has failed and refused to appear before
said committee pursuant to said summons. And whereas the senate
did on the fifteenth day of February, A. D. i860, by a resolution direct
the president of the senate to issue his warrant to the sergeant at
arms, commanding him to take into his custody the body of the said
F. B. Sanborn, wherever to be found, and to Jiave the same forthwith
before the bar of the senate to answer for contempt of the authority
of the senate in thus failing and refusing to appear before said com-
mittee:
You are therefore commanded to take the body of the said F. B.
Sanborn, wherever found, and forthwith have the same before the bar
of the senate to answer for contempt of the authority of the senate in
thus failing to appear before its committee.
In testimony whereof I have set my hand and seal of the Senate of
the United States this 16th day of February, i860.
(SEAL) John C. Breckenridge,
Vice President of the United States and
President of the Senate.
Attest : Asbury Dickins,
Secretary of the Senate of the United States.
1. It was held in this case, in habeas fore a committee of the senate, and
corpus proceedings, that a warrant is- addressed only to the sergeant-at-arms
sued by order of the senate of the of the senate, cannot be served by dep-
United States for the arrest of a witness uty in Massachusetts.
for contempt in refusing to appear be-
272 Volume 5.
6221. CONTEMPT. 6223.
(e) Venire.
Form No. 6221.'
In the Superior Court, in and for the County of Mann, State of
California.
The People of the State of California, to the Sheriff of the County
of Marin, Greeting:
You are hereby commanded forthwith to attach the body of John
Livingston, defaulting juror, and have him before our said court, on
Friday, the tenth day of April, i894, at the hour of eln>en A. M., and
there to show cause why he should not be punished for contempt, in
(Here describe the contemptuous acf).
Witness, Hon. George Randolph, superior judge, and the seal of the
said court, this seventh day of April, i896.
Attest: Richard Fleming, Clerk,
(SEAL) By George Jones, Deputy Clerk.
{Indorsement. ) 2
Form No. 6222.'
State of Illinois, )
La Salle County, f SS *
The People of the State of Illinois, to any Constable of said County,
Greeting:
Whereas, John Smith has been duly summoned to appear before
me, at my office in said county, on the tenth day of May, A. D. iB94,
to serve as a juror in a certain case then and there pending before
me, wherein John Doe was the plaintiff and Richard Roe was the
defendant, and hath failed to appear according to the command of
the summons:
We, therefore, command you to attach the body of the said John
Smith, and him forthwith bring before me, at my office in Ottawa, in
said county, then and there to answer for contempt in not obeying
said summons, and to show cause, if any he have, why he should not
be fined for such contempt, according to the statute in such case
made and provided. Hereof fail not, but of this writ make legal
service and due return.
Given under my hand and seal, this eleventh day of May, A. D. iS94*
Richard Fleming, (SEAL)
Justice of the Peace.
4. Interrogatories to Contemnor.
a. Order Directing Filing.
Form No. 6223.*
At a Special Term of the Supreme Court, held at the Court-house,
1. California. Code Civ. Proc. 3. Illinois. Starr & C. Anno. Stat.
(1897), ^ 1209, subs. ii. See also (1896), p. 2462, par. 161. See also stat-
statutes cited supra, note I, p. 228. utes cited supra, note I, p 228.
2. Indorsement. The judge must in- 4. This form is copied from the
dorse on the warrant a direction that record in the case of People v. Dwyer,
bail may be taken specifying the 90 N. Y. 402. See Birds. Rev. Stat.
amount. Cal. Code Civ. Proc. (1897), N. Y. (1896), p. 633, 16, and statutes
1213. cited supra, note I, p. 228.
5 E. of F. P. - 18. 273 Volume 5.
6223. CONTEMPT. 6223.
in the City of Brooklyn, in the County of Kings, on the 9th day of
January, i&82.
Present: Hon. Jasper W. Gilbert, Justice.
The People of the State of New York, on the \
relation of John D. Negus,
against
Richard S. Roberts, William Dwyer, John
McCarty, James Kane, James Weir, Jr.,
Daniel O'Connell, Philip Casey, James
Donovan, William J. LePine, Felix W.
Doyle, William Allison, Philip Schmitt,
William H. Waters, Thomas Bou'ers, Ben-
jamin B. Seaman, Patrick J. Kelly and
Thomas R. Armitage.
Each of the said seventeen last above named persons being charged
with a contempt of court in wilfully violating an order of injunction
granted by Hon. Henry A. Moore, County Judge of Kings County, on
the 26th day of December, i881, in a certain action pending in the
Supreme Court of the State of New York, County of Kings, wherein
John D. Negus is plaintiff and The City of Brooklyn, The Brooklyn
Elevated Railway Company and others are defendants, and a writ of
attachment having been issued against each of the above named
seventeen persons for such contempt, directed to the Sheriff of the
County of Kings, and returnable this day, and the said Sheriff
having made return to the said attachment, that he had attached the
said above named seventeen persons and each of them, and has
taken bonds for the due appearance of them and each of them
according to the exigency of the said attachment, now on filing said
attachment and return and the several bonds accompanying same,
and the said seventeen above named persons and each of them now
being by virtue of such attachment personally before the Court, and
each severally denying that he is guilty of the misconduct alleged
against him as aforesaid, and said Richard S. Roberts, appearing by
Ward & Jenks, his counsel, and the other persons appearing by
Winchester Britton, their counsel, and reading and filing the said
attachment and the papers on which the same was granted. Now
on motion of Herbert G. Hull, the attorney for the relator above
named, and after hearing Ward & Jenks, of counsel for Richard S.
Roberts, and Winchester Britton, counsel for the other persons, in
opposition, and David Barnett and Erastus Cooke, of counsel for the
relator, in support, Ordered that the relator above named forthwith
file in the office of the Clerk of this Court, interrogatories specifying
the facts and circumstances alleged against the aforesaid seventeen
persons and each of them, and requiring their and each of their
answers thereto.
And it is further ordered that the said seventeen above named
persons and each and every of them make written answers to said
interrogatories, on oath, within twenty-four hours after the service of
said interrogatories on them or their counsel.
It is further ordered that further proceedings .herein stand
adjourned until the llth day of January, i, at 10 o'clock in the
274 Volume 5.
6224. CONTEMPT. 6224.
forenoon, at a Special Term of this Court, to be held at the Court-
house, in the City of Brooklyn, County of Kings, at which time and
place it is hereby ordered and directed by this Court that the said
seventeen above named persons and each of them attend this Court
and abide the further order of this Court.
Granted January 9, i&82.
Chas. B. Eliiott, Clerk.
Enter: /. W. G.
b. Interrogatories.
(1) FOR VIOLATING INJUNCTION.
Form No. 6224.'
Supreme Court, County of Kings.
( Title of cause as in Form No. 6223.)
Interrogatories to be administered to Richard S. Roberts, William
Dwycr, John McCarty, James Kane, James Weir, Jr., Daniel O'Con-
nell, Philip Casey, James Donovan, William J. LePine, Felix W. Doyle,
William Allison, Philip Schmitt, William H. Waters, Thomas Bowers,
Benjamin B. Seaman, Patrick Kelly and Thomas R. Armitage, and
each of them, touching a contempt alleged against them and each of
them for wilfully violating an injunction order granted by Hon. Henry
A. Moore, County Judge of Kings County, on the 26th day of December,
i&81, in a certain action then pending in the Supreme Court, State of
NewYork, County of Kings, wherein John D. Negus was plaintiff and
The City of Brooklyn, The Brooklyn Elevated Railway Company and
others were defendants, which interrogatories are hereby exhibited
pursuant to an order of this Court, dated January 9th, iS82.
First interrogatory. Were you from the 1st day of January, iS81,
to and including the 31st day of December, iS81, one of the Aldermen
of the City of Brooklyn*. If yea, in what ward in said City were you
elected as such?
Were you, during the time above mentioned, a member of the
Common Council of the City of Brooklyn*
Second interrogatory. Were you served on the 27th day of Decem-
ber, i&81, at the City Hall, in the City of Brooklyn, and previous to
the meeting of the Common Council on that day, with a copy of the
summons and complaint, affidavits, undertaking and injunction
order and order to show cause in an action in the Supreme Court of
the State of New York, County of Kings, wherein John D. Negus
was plaintiff and The City of Brooklyn, The Brooklyn Elevated Railway
Company and others were defendants, a copy of which is hereto
annexed marked "A, January 9, i8<2"?
Was not such injunction and order to show cause served upon you
by showing you the original injunction and order to show cause in
said action, bearing the signature or purporting to bear the signature
thereto of Henry A. Moore, County Judge of Kings County, and at the
same time and place was there not delivered to and left with you per-
1. This form is copied from the record (1896), p. 633, 16, and statutes cited
in the case of People v. Dwyer, 90 N. supra, note i, p. 228.
Y. 402. See Birds. Rev. Stat. N. Y.
275 Volume 5.
6225. CONTEMPT, 6225.
sonally a copy 6r what purported to be a copy thereof, together with
a printed copy of the summons and complaint in said action?
When was such service made?
Answer fully.
Third interrogatory. Was not the object of the adjournment of
said meeting held December 27th, i881, and after the service of the
injunction order made by Hon. Henry A. Moore, County Judge of
Kings County, to December 28th, iS81, for the purpose of passing
or adopting the resolution which was the subject of the injunction
order served on you?
Fourth interrogatory. Were any of the adjournments had after the
service of the injunction for the purpose of adopting the aforesaid
resolutions?
Fifth interrogatory. Did you attend a meeting or session of the
Common Council of the City of Brooklyn on the 81st day of December,
i881J If yea, at what time was said meeting or session held?
Sixth interrogatory. Was a motion then made (if yea, by whom?)
to take from the table a communication from his Honor the Mayor,
presented December 19th, iS81, disapproving of resolutions adopted
in Common Council December 6th, i881?
Was or was not such communication the veto or disapproval by
the Mayor of the resolutions mentioned in the plaintiff's complaint
in the action hereinbefore mentioned? If you answer nay, or say
you do not know or do not remember, then produce and annex
to your answer to this interrogatory a copy of the resolutions adopted
December 6th, iS81, to which such communications referred.
Seventh interrogatory. Was a motion then made to adopt the said
resolutions notwithstanding the objections of his Honor the Mayor?
Who made such motion?
Were the resolutions mentioned in the plaintiff's complaint and
injunction order adopted by a two-thirds vote? Did you not vote in
the affirmative on such motion? Who else voted in the affirmative
on said motion? How many members so voted?
Eighth interrogatory. Was or was not a motion then made to
reconsider the vote then just taken, or was or was not said motion lost?
Did you not vote in the negative on said motion to reconsider the vote
taken on the adoption of the resolutions? Who else voted in the
negative?
Herbert G. Hull, Attorney for the Relator.
(2) FOR DISOBEYING MANDAMUS.
Form No. 6225.
(Precedent in People v. Pearson, 4 111. 274.)
Supreme Court of the State of Illinois, June Term, iS40.
The People of the State of Illinois on ~\
the relation of Robt. C. Bristol I Attachment f or Contempt.
V ' I
John Pearson.
Interrogatories propounded by said relator to be answered by the
said John Pearson.
276 Volume 5.
6226. CONTEMPT. 6226.
Interrogatory i. Did J. Y. Scammon, on or about the twenty- fifth
day of April, A. D. eighteen hundred and/0r/y, at the Circuit Court in
and for the county of Cook, at the last term of said court, deliver to
you a certain writ of mandamus, issued by the said Supreme Court, and
bearing date February fourteenth, eighteen hundred and/0r/y, com-
manding you to sign a certain bill of exceptions in the case of Robert
C. Bristol against John F. Phillips and was the same delivered in
open court, to you ?
Interrogatory 2. Have you, John Pearson, made a return to said
writ of mandamus? If so, when, how, and where? And where is
said writ of mandamus ? And when was it last in your possession ?
And if not in your possession, what have you done with it ?
Interrogatory 3. Did you, as judge of said Circuit Court, at the
time the said J. Y. Scammon delivered to you the said writ of man-
damus, direct the clerk of said Circuit Court to enter a rule against
the said J. Y. Scammon, to show cause why he (said Scammon) should
not be fined or imprisoned, or both, for a contempt of court?
Interrogatory 4. At the time the said Scammon answered said rule,
did you not state in open court that you would not obey said writ of
mandamus, or sign the bill of exceptions recited in said writ, or words
to that effect ?
G. Spring, Counsel for Relator.
5. Proceeding's Connected with Reference.
a. Order of Reference.
Form No. 6226.'
At a Special Term of the Supreme Court of the State of New York,
in and for the Fifth Judicial District, at the Court-house in the city of
Utica, in the county of Oneida, on the 8th day of January, iS89.
Present: Hon. M. H.Merwin, Justice Presiding.
Rozellen Aldinger }
against >
Emery S. Pugh. )
This action having been commenced by the personal service of the
summons and complaint on defendant on the 7th day of December,
i%88, and an injunction order having been duly granted in said action
by Hon. H. C. Sholes, Special Surrogate of Oneida County, restraining
and enjoining the defendant and his servants, agents, assistants and
assigns from doing certain acts therein specified, and said injunction
order having been duly served on the defendant on said 7th day of
December, i&88, and an order having been granted by Hon. M. H.
Merwin, a Justice of the Supreme Court, on the 81st day of December,
i&88, requiring the defendant Emery S. Pugh and Stephen J. Pugh,
Michael Leary and the Utica and Mohawk Railroad Co. and each of
them to show cause at this term of court why they and each of them
should not be punished for their alleged contempt, offense and mis-
1. This form is copied from the record in the case of Aldinger v. Pugh, 132 N.
Y. 403.
277 Volume .
6227. CONTEMPT. 6227.
conduct for violating or disobeying said injunction order as alleged
and charged in said order to show cause and the papers upon which
it was granted, which are hereby referred to.
Now on reading and filing said order to show cause, granted De-
cember 31, 1888, the petition of the plaintiff, verified December 31,
1888, the affidavit of Henry F. Coupe, verified December 31, 1888, the
affidavit of Geo. E. Philo, verified December 29, 1888, copies of the
summons, complaint and injunction, with proof of personal service,
the affidavit of the defendant Emery S. Pugh, verified January 5, i889
(and the affidavits of nine others similarly described), and after hearing
Henry F. Coupe, one of plaintiff's attorneys, in favor of the relief asked
in said order to show cause and W. E. Lewis, Esq., attorney for
Michael Leary and the said Utica and Mohawk Railroad Co., and Edward
Lewis, Esq., attorney for the defendant in opposition thereto.
Ordered, That said matter be and the same hereby is referred to
Charles G. Irish, Esq., an attorney and counsellor at law residing at
Utica, New York, to take the examination or testimony of the parties
to this proceeding and their witnesses of the facts, charged as to
whether such violated said injunction order, and if violated, whether
such violation was wilful, and whether Stephen J. Pugh, Michael Leary
and the Utica 6 Mohawk Railroad Co. or either of them knowingly
or wilfully violated said injunction order, or whether they or either
of them aided or abetted the defendant in violating the same in remov-
ing from the farm of the plaintiff, situated in the town of Frankfort,
Herkimer county, New York, on the 22d and 25th days of December,
1888, a quantity of hay in violation of said injunction order, and
the value of the hay drawn away from said farm, if any, on said 22d
and 24th days of December, 1888, and also if said injunction order was
so violated by said parties or either of them did the same defeat, im-
pede, impair or prejudice the rights of the plaintiff in this action and
to what extent and the damages sustained by the plaintiff, and that
he report said facts and return the testimony taken by him, together
with his opinion, to the Supreme Court, and also ordered that either
party may bring said matter to trial or hearing on serving the other
with ten days notice.
Enter: M. H. M., J. S. C.
b. Referee's Report.
Form No. 6227. 1
Supreme Court.
Rozellen Aldinger \
against
Emery S. Pugh. }
Reference as to whether Michael Leary, the U. 6r M. R. R. Co.,
Emery Pugh and Stephen J. Pugh are or either of them is guilty of con-
tempt of court in disobeying an injunction order served on defendant
on Dec. 7th, 1888.
1. This form is copied from the record in the case of Aldinger v. Pugh, 132
N. Y. 403.
278 Volume 5.
6227. CONTEMPT, 6227.
To the Supreme Court:
The undersigned, to whom it was referred by an order of this court
granted at a Special Term thereof at Utica, N. Y., on Jan. 8th, i889,
to take the examination or testimony of the parties to this proceed-
ing and their witnesses of the facts charged as to whether the defendant
violated said injunction order, and if violated whether such violation
was wilful and whether Stephen J. Pugh, Michael Leary^and the U. 6^
M. R. R. Co., or either of them knowingly or wilfully violated said
injunction order or whether they or either of them aided or abetted
the defendant in violating the same in removing from the farm of the
plaintiff in Frankfort, N. Y., on Dec. 22 tf and 24th, 1888, a quantity of
hay in violation of said injunction order, and the value of the hay
drawn away on said 22d and Htyth days of Dec., 1888, and also if said
injunction order was violated by said parties or either of them did the
same defeat, impair, impede or prejudice the rights of the plaintiff in
this action and to what extent are the damages sustained by the plain-
tiff, and that I report said facts and return the testimony taken by me
together with my opinion, would report as follows:
That I have been detained by the parties and their attorneys, the
testimony taken by me is hereto annexed and the facts as I believe
them to be from the testimony are as follows:
i st. That on Feb. 13th, 1888, by a written instrument dated that day,
the plaintiff leased to defendant her farm in the town of Frankfort,
N. Y., for the term of one year from Apr. 1st, 1888, to end on Apr. 1st,
i889, at a yearly rent of $350.
2d. That in and by said lease the defendant agreed to keep at least
ten cows on said premises and to draw back on said farm one load of
manure for every ton of hay or straw that he should sell from said
premises.
3d. That defendant took possession of said farm on or about Apr. 1,
i889, and remained in possession during said term and before the
expiration thereof fully complied with all its provisions except as stated
in the next finding.
4th. That in Nov., 1888, it was agreed between the parties that
plaintiff would waive the requirements for defendant to keep ten cows
if he would give security to draw back on the place a two-horse load
of manure for every ton of hay or straw he might take away and give
a note with defendant's father's (S. J. Pugh} on it for the install-
ment of rent due fan. 1, i889.
5th. That defendant did not give such security or note and up to the
time of the commencement of this action had drawn away about three
tons of straw worth $20 and about thirteen tons of hay worth $152.
6th. That this action was commenced Dec. 7th, 1888, by the service
of summons, complaint and injunction order on the defendant, at the
house on leased premises, between six and seven P. M., that he went to
S. J. Pugh's the same evening immediately after such service and
there saw his father.
That that evening or the next day Stephen J. Pugh was fully cog-
nizant of the service of said order and its contents.
7th. That on Dec. 22d and 24/A. 1888, the said Stephen J. Pugh drew
away from said leased premises eleven tons of hay of the value of $132
279 Volume 5.
6227. CONTEMPT 6227.
and that defendant was aware of such removal and did nothing to
prevent it.
8th. That by such removal on Dec. 22d and 24th, 1888, defendant
and S. J. Pugh and each of them knowingly and wilfully violated said
injunction order, the defendant in permitting the said Stephen J. Pugh
to remove said hay and the said .5. J. Pugh in aiding, abetting and
assisting the defendant to remove, draw away and dispose of the hay
referred to in and restrained by said injunction order, and further in
refusing to return the two tons of said hay removed by him on Dec.
24th, 1888.
9th. That on the 22d and 24th days of December, 1888, and prior
thereto, Michael Leary was employed by the Utica 6 Mohawk Rail-
road Company as superintendent, and as such had charge of said
Utica &> Mohawk Railroad Company's street railroad in the city of
Utica, N. Y.
loth. That the injunction order herein granted by H. C. Sholes,
Special Surrogate of Oneida County, was served upon Michael Leary
by Henry F. Coupe on Bleecker St., in the city of Utica, on Dec. 24,
1888, about 10 A. M. of that day, by exhibiting to said Leary the
injunction order and the signature of the Special Surrogate granting
the same, but that no copy of said order was served upon said Leary
or left with him at any time.
nth. That said Michael Leary had no notice of the existence of
said injunction order prior to said Dec. 24, and no knowledge that
the hay referred to in the petition and moving papers herein or the
title to the same was effected by any order or injunction.
1 2th. That said Michael Leary did not wilfully or knowingly vio-
late said injunction order and that he did not knowingly aid or
abet the defendant, Emery S. Pugh, or any other person, in violating
the same by receiving from the farm of the plaintiff in the town of
Frankfort, Herkimer County, N. Y., on the 22d and 24th days of
December, 1888, a quantity of hay in violation of said injunction
order.
I3th. That the Utica and Mohawk Railroad Company'^ a corporation
owning and operating a street railroad in the city of Utica, N. Y., and
that on the said 22 d and 24th days of December, 1888, and prior
thereto, James F. Mann was the president, George D. Dimon was the
treasurer, R. W. Sherman, vice president, and W. E. Lewis, secretary
thereof.
i4th. That the injunction order herein granted by H. C. Sholes,
Special Surrogate of Oneida County, Dec. 7, 1888, was not served upon
said corporation or its officers before the delivery of the hay referred
to in the petition herein.
I5th. That the Utica and Mohawk Railroad Company did not wil-
fully or knowingly violate said injunction order and that said cor-
poration and its officers did not aid or abet the defendant, Emery S.
Pugh, or any other person in violating the same by receiving from
the farm of the plaintiff, in the town of Frankfort, Herkimer County,
N. Y., on the 22d and 24th days of December, i&88, a quantity of hay
in violation of said injunction order.
i6th. That no notice was given to the Utica and Mohawk Railroad"
280 Volume 5.
6228. CONTEMPT. 6228.
Company or its officers by the plaintiff or her attorneys of the injunc-
tion order in question until about 10 A. M. on the 24th day of Decem-
ber, 1888.
I find as conclusions of law:
i st. That as to said Michael Leary the order to show cause granted
by Hon. M. H. Merwin, J. 6". C., dated Dec. 31, 1888, why said
Michael Leary should not be punished for contempt, offenses and mis-
conduct should be dismissed.
zd. That as to the Utica and Mohawk Railroad Company, the order
to show cause granted by Hon. M. H. Merwin, J. S. C., dated Dec.
81, 1888, why said corporation the Utica and Mohawk Railroad Com-
pany should not be punished for contempt, offenses and misconduct
should be dismissed.
3d. That the defendant Emery S. Pugh and his father, Stephen J.
Pugh, are guilty of contempt by entering into a plan to evade said
injunction order when cognizant of its provisions by removing the
hay referred to in said injunction order, and they and each of them
should be punished for his misconduct in violating said injunction
order.
4th. At the time of the service of the injunction order and also
on Dec. 22d and 24th, 1888, the plaintiff was damaged by the fracture
of defendant's part to draw back manure equivalent in amount to the
hay and straw then drawn away, this damage had since been reme-
died by defendant drawing manure on the place IromDec. 15th, 1888,
and through Feb. and Mar. i889, and inasmuch as the defendant be-
fore the expiration of such lease fully complied with all its provisions
except keeping the ten cows, and drew back upon said premises an
amount of manure equivalent to the hay and straw drawn away by
him the object of this action is substantially defeated and the plain-
tiff cannot be said to have suffered any damages from the breach of
any covenant in the lease or by removal of the hay.
Charles G. Irish, Referee.
Fees, $100, Paid by Plff.
Utica, N. Y., May 10, i889.
6. Order of Conviction. 1
1. For other orders of conviction see as For failure to obey judgment. Ex p.
follows: Henshaw, 73 Cal. 494.
For refusal to pay money to receiver. For failure to pay money to assignee.
Wilson v. Roach, 4 Cal. 362; Cart- / re Burt, 56 Minn. 399.
wright's Case, 114 Mass. 230. Of officer for failure to return papers.
Failure to obey order in supplemen- Ex p. Summers, 5 Ired. L. (27 N. Car.)
tary proceedings. Sickels v. Hanley,4 150.
Abb. N. Cas. (N. Y. Supreme Ct.) 231. Order of conviction of contempt in
For interference with and attempt to disobeying an injunction. Carroll v.
bribe witnesses. Savin, Petitioner, 131 New York, etc., R. Co., i Duer (N. Y.)
U. S. 267. 571.
For putting fictitious sureties in Requisites of Order. It has been held
undertaking to discharge mechanic's that the judgment in a proceeding
lien. McAveney v. Brush, 3 N. Y. against a party for contempt need only
Ann. Cas. 148. express on its face that it was a con-
For failure to surrender note under tempt generally, and that the specific
order of court. Thompson v. Onley, nature of the contempt need not be set
96 N. Car. 9. out. Ex p. Summers, 5 Ired. L. (27 N.
281 Volume 5.
6228. CONTEMPT. 6229.
a. For Contempt in Facie CuriaB. 1
Form No. 6228.
(Precedent in Harrison v. State, 35 Ark. 459.)*
State of Arkansas
against
Joseph G. Harrison, William N. May,
/. P. Byers, H. W. Walker.
Now, on this day the court doth assess a fine of fifty dollars each
against Joseph G. Harrison, William N. May, J. P. Byers and H.
W. Walker, for a contempt, committed as follows, viz.: The said
Joseph G. Harrison, William N. May, J. P. Byers and H. W. Walker,
being attorneys at law, employed on the side of the defense in a
cause pending in this court, wherein the State of Arkansas is plaintiff
and S. L. Tucker, indicted by the name of Clint. Tucker, is defend-
ant, and the said attorneys, on filing a motion for a new trial in said
cause, stated as one of the grounds of said motion as follows, to wit:
"No. 23. Because the judge of this court, in which the prosecution
was had herein, was so prejudiced against this defendant that he did
not give him a fair and impartial trial;" and afterwards subscribed
to an affidavit reaffirming said statement, which the court doth con-
sider a contempt, and doth assess the fines above stated.
It is, therefore, considered and adjudged by the court, that the
State of Arkansas have and recover of and from the said Joseph G.
Harrison, William N. May, J. P. Byers and H. W. Walker the sum
of fifty dollars each, as for fine, and all her costs in this behalf laid
out and expended, and have execution therefor.
Form No. 6229.
(Precedent in Pickett v. Wallace, 57 Cal. 555.)*
In the Supreme Court of the State of California.
Thursday, August 6th, i&74.
Court met at eleven o'clock pursuant to adjournment. Present,
Hon. W. T. Wallace, C. J.,/. B. Crockett, J., A. C. Niles,}., E. W.
McKinstry, J. Grant /. Taggart, Clerk. Thos. F. O'Connor, Bailiff.
Car.) 149; State v. Miller, 23 W. Va. the order given in the text was held bad
801. But in other cases the contrary on demurrer, and this judgment was
view has been held. People v. Turner affirmed on appeal,
i Cal. 152; Albany City Bank v. Scher- Precedent. In Ex p. Slice, 70 Cal.
merhorn, 9 Paige (N. Y.) 372. 52, it was held that refusal to be sworn
1. See forms in Ex p. Stice, 70 Cal. as a witness in a cause on trialisacon-
57; People v. Kelly, 24 N. Y. 75; State tempt of court both under the provisions
-v. Sachs, 2 Wash. 373. of Cal. Code Civ. Proc., 1209, subs.
2. In this case plaintiffs sued out a 10, and also at common law, and that
writ of certiorari to the circuit court of the court had full power to adjudge the
Yell county, to bring up the record of contempt and to fix the penalty there-
proceedings and quash a judgment ren- for. The order was as follows:
dered against them for contempt, but " In the Superior Court of San Benito
they were held to be plainly in con- County.
tempt of court, and the judgment was State of California
affirmed. v.
3. A complaint claiming damages for J. F. Prewett.
the imprisonment in accordance with On this first day of March, iSS6, at
282 Volume 5-
6229. CONTEMPT. 6229.
The Court having met pursuant to adjournment, the Judges pro-
ceeded to their respective seats upon the Bench. Charles E. Pickett,
being then present in the court-room, suddenly obtruded himself
upon the Bench, and into the chair of Crockett, J., and announced
that he had as good a right to occupy a seat upon the Bench of said
Court as the said Crockett had, and the said Pickett thereupon, being
commanded by the Chief Justice to leave the said ch^air, peremptorily
refused to do so, and was subsequently removed therefrom by actual
force.
Whereupon it is now here by the Court adjudged that the said
Charles E. Pickett is guilty of a contempt of this Court, committed in
its immediate presence, by unlawfully interfering with its proceed-
ings in manner as aforesaid, and by disorderly, contemptuous, and
insolent behavior towards the Court and the Judges thereof then
present as aforesaid, it is now here ordered and adjudged by the
Court, that for such, his contempt aforesaid, he, the said Charles E.
Pickett, shall suffer imprisonment by close confinement in the com-
mon jail of the city and county of San Francisco for the period of five
days, and further, that he pay a fine of five hundred dollars, and that
if the said fine be not paid at the expiration of five days r imprison-
ment, then it is further ordered, adjudged, and decreed, that the said
Charles E. Pickett be imprisoned and kept in close confinement in
said common jail until the said fine be paid, provided that such
imprisonment for the nonpayment of said fine may extend to, but
shall not exceed, one day for every two dollars of the fine due from
him, the said Charles E. Pickett, and that a warrant and writ of
execution do forthwith issue, directed to the sheriff of the city and
county of San Francisco, commanding him to carry the aforesaid
judgment into effect.
And the said Charles E. Pickett being still present, and having
been adjudged guilty of the contempt of the Court aforesaid, in man-
ner and form aforesaid, and the judgment of the Court in that behalf
having been then and there announced in open Court, he, the said
Charles E. Pickett, then and there insolently and contemptuously
used and addressed to the Court then and there, being in open
session, the following language in reference to the said judgment, to
wit, "I defy your authority."
Whereupon and before committing the said Charles E. Pickett into
the custody of the sheriff, it is now here adjudged that the said
the hour of two o'clock/, m., the above Richmond Stice pay a fineofyfz^ hundred
named cause was upon trial in the above dollars ($joo), and that in default of the
entitled court, and Richmond Stice was payment thereof he be imprisoned in
called as a witness for the people, and the county jail of San Benito county
was ordered by the said court to be until said fine be fully satisfied, in the
sworn as a witness, and thereupon, in proportion of one day's imprisonment
the immediate view and presence of the for every dollar of the fine; and on the
said court, he did refuse to be so sworn payment of such portion of said fine as
as a witness. shall not have been satisfied by imprts-
Whereupon it is adjudged that the onment at the rate above prescribed,
said Richmond Stice is guilty of a con- that the defendant be discharged from
tempt of court in refusing to be so sworn custody.
as a witness, and as a penalty thereof James F. Breen^ Superior Judge."
it is ordered, adjudged and decreed that
283 Volume 5.
6230. CONTEMPT. 6230.
Charles E. Pickett is guilty of a further contempt of this Court com-
mitted in its immediate presence, by reason of the disorderly, con-
temptuous, and insolent behavior and language towards the Court
and the judges thereof, as last aforesaid, and that for such, his con-
tempt last aforesaid, he shall suffer imprisonment by close confine-
ment in the said common jail for the further period of five days, and
that he pay a fine in the further sum of five hundred dollars.
It is therefore ordered that the said Charles E. Pickett be com-
mitted into the custody of the sheriff of the city and county of San
Francisco, to be by him imprisoned and kept in close confinement in
the common jail of said city and county of San Francisco for the last-
mentioned space of five days, and until he pay the said last-mentioned
sum of five hundred dollars, and that if said last-mentioned fine be not
paid at the expiration of said last-named five days' imprisonment,
then and in that case it is ordered that the said Charles E. Pickett be
further imprisoned until said last-mentioned fine be paid, provided
such imprisonment shall not exceed one day for each two dollars of
said fine last aforesaid adjudged.
The imprisonment for the contempt last aforesaid to commence at
the expiration of the imprisonment for the contempt adjudged firstly
aforesaid.
Form No. 6230.
(Precedent in In re Wood, 82 Mich. 78.)
At a session of the Circuit Court for the county of Wayne, con-
vened and held at the Circuit Court room, in the city of Detroit, on
the twenty-ninth day of May, in the year one thousand eight hundred
and ninety.
In the Matter of Emery T. Wood, for Contempt of Court.
Present: Hons. H. N. Brevoort, Geo. Gartner, Geo. S. Hosmer, C.
J. Reilly, Circuit Judges.
Before Judge Brevoort.
It appearing to the court now here, from its own immediate view
thereof, that Emery T. Wood hath been and is guilty of disorderly
behavior in using language disrespectful to the court during its sitting,
and in the immediate view and presence of the said court, and directly
tending to interrupt its proceedings, that is to say, in using the fol-
lowing language:
"With all due respect to your honor, I must say that when your
honor chastises me from the bench, as your honor does now, and
when you chastise me as you did when the pleadings came up, and
when the public press sends out a report, and sets your honor upon
the pedestal, and says I do not know how to draw a declaration, your
honor has overstepped the mark, and not accorded me the justice I
am entitled to in this court. It seems to me, while I cannot refrain
from the feeling which takes possession of me while I am to be chas-
tised, I must say that I have not been treated fairly in this case, and
I have not been treated fairly in one or two other cases before your
honor. Why it is, I cannot say. I am not aware that I have ever
had any difficulty that your honor should carry into a case I am try-
ing, and affect my client as well as myself. I say there are things
284 Volume 5.
6231. CONTEMPT. 6232.
that are discretionary with the court; but if the court abuses his dis-
cretion, I have my remedy."
Wherefore, it is adjudged by the said court now here that the said
E. T. Wood is guilty of a criminal contempt of the said court; and it
is further ordered and adjudged that the said Emery T. Wood&Q pay
to the people of the State a fine of twenty-five dollars within twenty-
four hours, or that in default thereof, he be committed to the county
jail for the period of five days.
[H. N. Brevoort, Circuit Judge.] 1
Form No. 6231 .
(Minn. Stat. (1894), 5092.)*
State of Minnesota, \
County of Ramsey. \
The State of Minnesota.
Whereas, on the sixth day of January, A. D. iS98, while we, the
undersigned, one of the justices of the peace of the said county, was
engaged in the trial of a cause between John Doe, plaintiff, and
Richard Roe, defendant, in said county, according to the statute in
such case made and provided, Samuel Short, of the said county, did
interrupt the said proceedings, and impair the respect due to the
authority of the undersigned, by (Here describe the cause particularly),
and whereas the said Samuel Short was thereupon required by the
undersigned to answer for the said contempt, and show cause why
he should not be convicted thereof; and whereas the said Samuel
Short did not show any cause against the said charge: Be it therefore
remembered, that the said Samuel Short is adjudged to be guilty; and
is convicted, of a criminal contempt aforesaid, before the under-
signed, and is adjudged by the undersigned to pay a fine of ten
dollars, or to be imprisoned in the common jail of said county for
the term of two days, or until he is discharged from imprisonment
according to law.
Dated this sixth day of January, A.D. iS98.
Abraham Kent, Justice of the Peace.
Form No. 6232.
(I N. Car. Code (1883), P- 365, No. 48.)
Whereas, on the sixth day of January, i898, while engaged in the
trial of an action (or other judicial act) in which John Doe was plain-
tiff and Richard Roe was defendant, at my office in Nash county,
Samuel Short did wilfully and contemptuously interrupt me, and
did then and there conduct himself so disorderly and insolently
towards me, and by making a loud noise did disturb the proceedings
on said trial (or other judicial act) and impair the respect due to the
authority of the law ; and on being ordered by me to cease making such
noise and disturbance, the said Samuel Short refused so to do, but on
the contrary, did publicly declare and with loud voice (State whatever
1. The words enclosed by [ ] will not 2. The same form is set out in Hill's
be found in the reported case, but have Anno. Stat. Wash. (1891), 1606.
been added to render the form complete.
285 Volume 5.
6233. CONTEMPT. 6234.
offensive words were used); and whereas when immediately called upon
by me to answer for the said contempt, said Samuel Short did not
make any defense thereto, nor excuse himself therefrom; the said
Samuel Short is therefore convicted of the contempt aforesaid, and is
adjudged to pay a fine of five dollars and be imprisoned in the county
jail for the term of two days, and until he pays such fine or is duly-
discharged from imprisonment according to law.
Abraham Kent, Justice of the Peace.
Form No. 6233.
(Precedent in Com. v. Bell, 145 Pa. St. 381.)
Commonwealth } In the Court of Quarter Sessions of Lawrence
v. > County, Pennsylvania.
W. D. Wallace. ) No. 8 September Sessions i800.
And now, December 17, i890, the witnesses Edwin Shaffer, alias
Edward Shaffer, Thomas J. Downing and John R. Tate, are each
sentenced to pay a fine of two hundred dollars to the commonwealth,
and each to undergo an imprisonment in the common jail in and for
the county of Lawrence, until the tenth day of March next; and stand
committed to the custody of the sheriff for the purpose of carrying
into effect this sentence.
By the Court.
Form No. 6234.
(Precedent in Ex p. Terry, 128 U. S. 297.)'
In the Circuit Court of the United States of America for the Northern
District of California.
In the Matter of Contempt of David S. Terry. In open court.
Whereas on this <?</day of September, 1888, in open court, and in
the presence of the judges thereof, to wit, Hon. Stephen J. Field, Cir-
cuit 'J ustice, presiding; Hon. Lorenzo Sawyer, Cir-cuit Judge, and Hon.
George M. Sabin, District Judge, during the session of said court, and
while said court was engaged in its regular business, hearing and
1. In this case the petition for dis- of their functions. Without it, judicial
charge on habeas corpus was dis- tribunals would be at the mercy of the
missed, the court saying in part: disorderly and violent, who respect
" It is a settled doctrine in the juris- neither the laws enacted for the vindi-
prudence both of England and of this cation of public and private rights, nor
country, never supposed to be in con- the officers charged with the duty of
flict with the liberty of the citizen, that adminstering them. To say, in case of
for direct contempts committed in the a contempt such as is recited in the
face of the court, at least one of superior order below, that the offender was ac-
jurisdiction, the offender may, in its cused, tried, adjudged to be guilty and
discretion, be instantly apprehended imprisoned without previous notice
and immediately imprisoned, without of the accusation against him and
trial or issue, and without other proof without an opportunity to be heard, is
than its actual knowledge of what oc- nothing more than an argument or
curred, and according to an unbroken protest against investing any court,
chain of authorities, reaching back to however exalted, or however extensive
the earliest times, such power, although its general jurisdiction, with the power
arbitrary in its nature and liable to of proceeding summarily, without fur-
abuse, is absolutely essential to the ther proof or trial, for direct contempts
protection of the courts in the discharge committed in its presence."
286 Volume 5.
6235. CONTEMPT. 6235.
determining causes pending before it, one Sarah Althea Terry was
guilty of misbehaving in the presence and hearing of said court,
And whereas, said court thereupon duly and lawfully ordered the
United States marshal, J. C. Franks, who was then present, to remove
the said Sarah Althea Terry from the court-room;
And whereas the said United States marshal then and there
attempted to enforce said order, and then and there was resisted by
one David S. Terry, an attorney of this court, who, while the mar-
shal was attempting to execute said order in the presence of the court,
assaulted the said United States marshal, and then and there beat
him, the said marshal, and then and there wrongfully and unlawfully
assaulted said marshal with a deadly weapon, with intent to obstruct
the administration of justice, and to resist such United States mar-
shal and the execution of the said order;
And whereas the said David S. Terry was guilty of a contempt of
this court by misbehavior in its presence and by a forcible resistance
in the presence of the court to a lawful order thereof, in the manner
aforesaid ;
Now, therefore, be it ordered and adjudged by this court, That
the said David S. Terry, by reason of said acts, was, and is, guilty of
contempt of the authority of this court, committed in its presence
on this 3d day of September, iS88-,
And it is further ordered, That the said David S. Terry be punished
for said contempt by imprisonment for the term of six months;
And it is further ordered, That this judgment be executed by
imprisonment of the said David S. Terry in the county jail of the
county of Alameda, in the State of California, until the further order
of this court, but not to exceed said term of six months.
And it is further ordered, That a certified copy of this order, under
the seal of the court, be process and warrant for executing this order.
b. For Contemptuous Publication.
Form No. 6235.
(Precedent in State v. Judge, 45 La. Ann. 1255.)
Civil District Court for the Parish of Orleans.
Tuesday, the 21st day of March, iS93. Present, the Hon. Francis
A. Monroe, Judge.
Peter Fabacher, \
vs. V No. 35,549.
Bryant & Mathers. )
In the matter of the rule herein taken upon the Times-Democrat
Publishing Company, through its manager, Page M. Baker, and its
president, Ashton Phelps, to show cause why said manager and presi-
dent should not disclose to the court the party at whose instance a
certain article which appeared in said Times-Democrat newspaper on
Sunday, March 19, iS93, concerning the case in which said rule is
taken and which is now on trial before a jury in this court, was pub-
lished and from whom the information contained in said article was
obtained, and whether said article was paid for, and if so by whom,
287 Volume 5.
6236. CONTEMPT. 6236.
or in default thereof why they, the defendants in rule, should not
stand committed for contempt of this court; said defendants having
appeared in person and through their counsel, and having made the
disclosures asked for in said rule.
And the court having heard evidence and argument and being
satisfied therefrom that said publication was the voluntary act of
said Times-Democrat Publishing Company, for which said company
and its officers are alone responsible, and the question being then
submitted to the court by the counsel for the plaintiff and for the
defendants respectively whether said company was guilty of con-
tempt of court in publishing said article, and the court finding the
law and the evidence to sustain the affirmative of this proposition
and for the reasons orally assigned in open court, it is ordered that
the Times- Democrat Publishing Company and Page Af. Baker, manager
of said company, be adjudged guilty of contempt of the authority of
this court in authorizing, publishing and circulating in a newspaper
published and circulated within the jurisdiction of this court an
article the tendency and effect of which is necessarily to influence
and forestall public opinion and the verdict of the jury on the case
now being tried.
And the court reserves its decision as to the penalty to be imposed
for said contempt.
c. For Failure to Obey.
(1) DECREE FOR PAYMENT OF ALIMONY.
Form No. 6236.'
At a Special Term of the Supreme Court of the State of New York,
held at the Supreme Court chambers in the City Hall, in the city of
Albany, and county of Albany, on the twenty- seventh day of August,
1 87*.
Present: Hon. Theodore R. Westbrook, Justice.
Cornelia Park
agt.
Richard H. Park.
A writ of attachment having heretofore issued out of this court
against the defendant Richard H. Park, for alleged contempt in dis-
obeying the mandate of the court, contained in the decree herein,
granted April Zlfth, 1868, requiring the said defendant to give securi-
ty for the payment of the allowance therein granted to the plaintiff,
which writ was directed to the Sheriff of the City and County of New
York and returnable on the thirtieth day of April, i878, and the said
Sheriff having returned that he had attached the body of the said
1. This order is copied from the and the statutory provision (Laws
records in Park v. Park, 80 N. Y. 156. (1847), c. 390, 2), prohibiting impris-
The defendant claimed that the attach- onment for contempt in not paying
ment should be vacated because it was costs, had no application to this case,
based on his refusal to pay the costs of For conditional order that defendant
the suit. This claim was untenable, be committed unless money is paid see
as the attachment was issued for a dis- Hurd v. Hurd, 63 Minn. 443.
obedience of the order of the court,
288 Volume 5.
6236. CONTEMPT. 6236.
Richard H. Park, and let him to bail in the sum of three thousand dol-
lars, as directed in said writ and by the indorsement of the clerk
thereon ; and the said Richard H. Park having appeared before the
court on said thirtieth day of April, accompanied by counsel, and
interrogatories having been filed, specifying the facts and circum-
stances alleged against the defendant, and a copy of the same having
been served on the said defendant, and the said defendant having
interposed answers thereto on oath, and also made and presented
his affidavit for the purpose of purging himself of contempt; and it
having been referred to A. J. Taylor, Esquire, to take such proofs
as might be offered by either party touching the said defendant's
ability to pay said allowance or to give security therefor, and the
said defendant having on the thirtieth day of July, i878, made a
motion to vacate said attachment, and the court having refused to
entertain said motion until the coming in of the referee's report, and
the hearing of the parties on the attachment proceedings, which was
set down for August 21, i87<; and testimony having been taken
before said referee on the part of both plaintiff and defendant, and
the referee having duly reported the same to the court, and the said
hearing of the contempt proceedings, under the attachment and the
motion to vacate the attachment, having been brought on before the
court on said twenty-seventh day of August, iS78, on the following
papers, viz:
The affidavits of Cornelia Brainard, dated November 22, i877; of
Samuel T. Smith, dated November 26, i877, and July 27, i87; the
interrogatories on file and the decree in this action on the part of
the plaintiff; and the affidavits of R. H. Park, dated April 30, iS78-
and E. C. Ripley, dated April '27, i87, and April 2^ iS78; also of R. H.
Park, dated July 8, i878, and of E. C. Ripley of same date, and the
sworn answers to the interrogatories filed herein, on the part of the
defendant, together with the report of the referee, A. J. Taylor, Esq.,
and testimony taken before him, and all other papers on file herein;
and Samuel Tro. Smith, Esq., of counsel for plaintiff, having been
heard in favor of the attachment and in opposition to the motion to
vacate, and Edward C. Ripley, Esquire, of counsel for defendant, in
favor of said motion and in opposition to said attachment, and after
due deliberation, it appearing to the court from such affidavits,
report, answers and proofs, that Richard H. Park, the said defend-
ant, is guilty of the contempt alleged against him, and that such
misconduct was calculated to and did defeat, impair, impede or preju-
dice the rights of the above named plaintiff, Cornelia Park.
Now, on motion of Sam. Tro. Smith, attorney for plaintiff, it is
ordered:
I. That the motion to vacate the attachment be, and the same is
hereby, denied, with ten dollars costs of opposing said motion to the
plaintiff.
II. That said Richard H. Park pay to the said plaintiff her costs
and expenses in these proceedings, amounting to the sum of seventy
dollars and forty-four cents, which amount has been found and taxed
by the court on proper proof thereof presented by the plaintiff, and
which is hereby imposed as a fine for his misconduct.
5 E. of F. P. 19. 289 Volume 5.
6237. CONTEMPT. 6237.
III. That said R. H. Park give security to be approved by one of
the justices of this court, in the sum of three thousand dollars, to the
clerk of the city and county of Albany for the payment to the plain-
tiff of the sum of three hundred dollars per annum, in semiannual
payments, for the support and maintenance of the plaintiff, to be
paid: one hundred and fifty dollars on the twenty-fourth day of April,
and one hundred and fifty dollars on the twenty-fourth day of October,
in each and every year, during the natural life of the said plaintiff,
or till she shall again marry.
IV. That the said defendant, Richard H. Park, be and he is hereby
directed to stand committed to the common jail of the county of
Albany, there to remain charged upon said contempt until such
security shall be given and approved, and such costs and expenses
shall be fully paid, unless he shall sooner be discharged by the court;
and that a warrant issue to carry this order into effect.
V. That the bail bond given in these proceedings remain in force
until the defendant Richard H. Park shall surrender himself under
the warrant to be issued hereunder.
VI. That all proceedings herein on the part of the plaintiff be
stayed for thirty days from the service of a certified copy of this order
on defendant's attorney, on the defendant's executing and filing
with the clerk of Albany county, a proper and sufficient undertaking
in the sum of one thousand dollars, that the appellant will pay all costs
and expenses awarded against him in this order, in case the same
shall be affirmed or the appeal dismissed; together with all costs
and damages which may be awarded against him on said appeal.
Enter: T. R. W., J. 6 1 . C.
(2) INJUNCTION. 1
Form No. 6237.*
At a Special Term of the Supreme Court, held at the Court-house in
the City of Brooklyn, in the County of Kings, on the fourteenth day of
January, i882.
Present: Hon. Jasper W. Gilbert, Justice.
The People of the State of New
York, on the relation of John D.
Negus,
against
William Dwyer and others, re-
spondents.
A writ of attachment having heretofore issued out of this court
against the said above named person and others, charging him and
them and each of them with a contempt of court, in wilfully violating
an order of injunction granted by Hon. Henry A. Moore, County Judge
of Kings County, on the twenty-sixth day of December, i881, in a cer-
1. See also other orders of convic- Russel. 33 Wis. 193; / re Tyler, 149
tions for failure to obey injunctions U. S. 164.
in Koester v. State, 36 Kan. 27; Lati- 2. This order is copied from the
mer v. Barmore, 81 Mich. 592; Howe record in the case of People v. Dwyer,
v. Willard, 40 Vt. 654; Poertner v. 90 N. Y. 402.
290 Volume 5.
6238. CONTEMPT. 6238.
tain action then pending in the Supreme Court of the State of New
York, County of Kings, wherein John D. Negus is plaintiff, and The
City of Brooklyn, The Brooklyn Elevated Railway Company and others
are defendants, which attachment was directed to the Sheriff of the
County of Kings and returnable on the ninth day of January, i&82,
and the said Sheriff having made return to the said attachment that
he had attached the body of the said above named William Dwyer,
and has taken a bond for the due appearance of him according to
the exigency of said attachment, and the said above named William
Dwyer, having appeared personally before said court. And inter-
rogatories specifying the facts and circumstances alleged against him
having by order of the court been filed, and a copy of the same having
been served on his counsel pursuant to said order, and he having
been required to answer said interrogatories, and having answered
the same, and the respondent Richard S. Roberts, being examined
in open court, and after reading the affidavits of Theodore D. Dimon,
Robert Black and Harry O.Jones, and a copy of the minutes of the
meeting of the Common Council held on December 31, iS81, and after
the examination of Robert Black in open court, and filing the testimony
so taken of said Roberts and Black, and proceedings having been duly
adjourned to this day. And after hearing Erastus Cooke, David
Barnett and Hubert G. Hull, Esqs., in support of said motion, and
Winchester Britton, Esq., and Ward cr> Jencks, counsel for the
respondents.
Now, on motion of Herbert G. Hull, the attorney for the relator,
It is now here considered and adjudged that the said William
Dwyer has been and is guilty of the misconduct and contempt alleged
against him, and has been and is guilty of a wilful disobedience to a
lawful mandate of this Court, to wit, in wilfully violating the injunc-
tion order granted by Hon. Henry A. Moore, County Judge of Kings
County, on the twenty-sixth day of December, iS81, in the aforesaid
action.
And it is further ordered and adjudged, that the said William
Dwyer for his said misconduct be imprisoned in the common jail of
the County of Kings, for the period of M/r/ydays; and it is further
Ordered and adjudged that a fine of two hundred and fifty (%5ff)
dollars be and the same is hereby imposed upon him for his said
misconduct, and that he stand committed to the common jail of the
County of Kings, there to remain charged upon said contempt, until
his fine imposed as aforesaid shall be fully paid, not exceeding thirty
days, unless he shall be sooner discharged by the further order of the
court, and that a warrant issue to carry this order into effect, and
that such fine be paid to the Clerk of this Court and to be disposed
of according to law.
A copy. Chas. B. Elliott, Clerk.
Form No. 6238.
(Precedent in Stimpson v. Putnam, 41 Vt. 243.)
J. C. Stimpson et al. ) Court of Chancery,
v. \ Orleans County.
A. W. Putnam et al. ) December Term, i807.
291 Volume 5.
6239. CONTEMPT. 6239.
This cause having been fully heard, so far as the complaint for the
contempt is concerned, upon the proofs, allegations of the parties,
and the argument of their respective solicitors, and having been duly
considered by the court, it is adjudged that said Alfred W. Putnam
has been guilty of a contempt in manner and form as alleged in the
complaint in that he did wilfully violate said order of injunction in
said complaint referred to by selling and removing, or causing to be
removed, into the province or dominion of Canada and beyond the
reach of the process of this court, a certain steam-engine and elevator
and other machinery attached and connected therewith, included
within the terms of said injunction, and did commit other waste upon
the masonry of said limekiln, as the orators have complained against
him; and it is considered that the damage to the orators, by the de-
fendant's said unlawful act, is the sum of eleven hundred and seventy
dollars (1170'), and said Alfred W. Putnam is hereby ordered and
decreed to pay forthwith to the clerk of the court of chancery in the
county of Orleans, for the orators, said sum of eleven hundred and
seventy dollars, with the costs of this proceeding, to be taxed by the
clerk, and also to pay to said clerk, for the treasury of the state of
Vermont, the sum of fifty dollars, as a further fine on this behalf; and
it is further ordered and decreed that said Alfred W. Putnam, in de-
fault of immediate and full payment of said several sums of money,
be committed to prison in the common jail at Irasburgh in said Orleans
county, and be therein confined until said several sums, with interest
thereon from this day, together with cost of commitment and confine-
ment in jail, shall be fully paid.
Done in court this 1th day of April, A. D. 1868.
Benj. H. Steele, Chancellor.
(3) MANDAMUS. 1
Form No. 623 p. 2
At a Special Term of the Supreme Court of the State of New York,
held in the county Court-house of Columbia county, in the city of
Hudson, on the fourth day of April, iS94:
Present Hon. Samuel Edwards, Justice.
The People of the State of New York, *
on the relation of John /. Platt and
another,
against
Frank Rice, Edward Wemple, Charles
F. Tabor, Elliot F. Danforth and
John Bogart.
Upon the order of this court, entered herein on the seventh day of
December, i891, wherein it was ordered that a writ of peremptory
mandamus issue out of and under the seal of this court, commanding,
and requiring the defendants herein, the state board of canvassers,
to issue a certificate of election to the office of senator in the fifteenth
1. See also a form in Ex p. Rust, 38 2. This form is copied from the
Tex. 344. records in People v. Rice, 144 N. Y. 249.
292 Volume 5.
6239. CONTEMPT. 6239.
senatorial district of this state, disregarding the so-called return of
the board of county canvassers of the county of Dutchess, which was
signed by John Mylod, as secretary of said board pro tempore, and was
not signed by the county clerk of Dutchess county, or certified under
the seal of said county clerk, but that, instead thereof, they consider
only such return from the county of Dutchess as should thereafter be
filed, containing the signatures of the clerk of the county of Dutchess
and the chairman of said board of county canvassers, and issued
under the seal of the said county clerk, and that in such certificate
of election the said defendants, as such state board of canvassers,
should certify and declare that the person who appeared upon the
certified returns and statements made by the board of canvassers of
the counties of Columbia, Putnam and Dutchess, in pursuance of the
statute and the order of the court, to have received the greatest
number of votes, was duly elected from the fifteenth senatorial
district.
And upon the order entered in the Court of Appeals herein, on
December 29, i891, as embodied in the remittitur sent from that court
to this court, wherein it was ordered and adjudged, and the said
order of this court of December 7, i891, and the order of the General
Term, affirming the same, and the said writ itself be modified by
striking out the provision requiring a return to be certified by, and
to come from, the county clerk of Dutcjiess county, and issued under
the seal, and that the said order so appealed from, as so modified, be
affirmed without costs.
And upon the affidavits si John /. Platt, Robert F. Wilkinson, J.
Rider Cady, Charles F. Cussum, F. E. Smith, C. H. Winslow, and
Alfred R. Conklin, filed in the office of the clerk of Albany county,
June 9, i893, and the order entered herein at the General Term of
this court, December 6, i893, reserving the order entered herein at a
Special 'Term of this court, denying the motion then made upon the
said affidavits by the relator, for an order requiring the defendants
herein to show cause why they should not be punished as for a con-
tempt of court, and granting such motion, and requiring said defend-
ants to show such cause before this court at a SpedatTerm thereof,,
to be held in the city of Hudson, on January 18, i894*
And on reading and filing a copy of the appeal book on said appeal,
and a certified copy of such order of the General Term, and notice of
filing of the original, and of the application so to be made on January
13, 1 894, before this court at a Special Term, in said county of Co-
lumbia, with due proof of service thereof upon the said defendants
herein.
And on reading and filing the answer of the said defendants, duly
verified by each of them, and accepted as affidavits by them respec-
tively, and the affidavits of J. Newton Fiero and John J. Hughes, in
opposition to the motion.
And after hearing Mr. John Brooks Leavitt, of counsel for the rela-
tor, for the motion, and Mr. J. Neu'ton Fiero, of counsel for the
respondents, opposed, and due deliberation had thereon.
And it appearing that, after said order of December 7, i891, had
been filed, and pending the said appeal, by the defendants, to the
293 Volume 5.
6239. CONTEMPT. 6239.
Court of Appeals, from the order of the General Term affirming said
order of December 7, i891, another return of the board of county
canvassers of Dutchess county was filed pursuant to the statute and
an order of the court in the office of the clerk of said Dutchess county,
and certified copies thereof were forwarded by him to the Governor, the
Secretary of State and the State Comptroller, pursuant to the statute
and said order, and the said certified copies of such return were taken
from their possession, and other certified copies of the same return
were delivered to each one' of the defendants respectively by a pri-
vate citizen, and the said defendants had the same in their possession
on the twenty-ninth day of December, \W1, at the meeting held by
them as the said board of canvassers, hereinafter referred to.
And it appearing that upon the said returns made by the board of
canvassers of the counties of Columbia, Putnam and Dutchess, regard-
ing the aforesaid return signed by said Mylod as one of them, that
one Edward B. Osborne had received the greatest number of votes
for the office of senator from said district; and that upon the returns
made by the said boards of county canvassers of the said counties,
considering the other return from the board of county canvassers
of Dutchess county so filed as aforesaid after the said order of
December 7, iS91, as one of such returns, that one Gilbert A. Deane
had received the greatest number of votes for said office.
And it further appearing that on the twenty-ninth day of December,
i&91, after the rendition by the Court of Appeals of its decision, upon
the appeal to it, by the defendants herein, from the order of the
General Term affirming said order of the Special Term of December
7, i&91, and before the judgment of said Court of Appeals herein
was made the judgment of this court by filing the remittitur and
entering thereon the usual order upon the remittitur, making the said
judgment of the Court of Appeals the judgment of this court, and
before any writ of mandamus, in pursuance the.reof, was issued out of
and under the seal of this court, pursuant to the said order of Decem-
ber 7, iS91, as so modified, they, the said defendants, held a meeting
for the purpose of canvassing the returns made by the boards of
canvassers of the counties of Columbia, Putnam and Dutchess, for the
office of senator in the fifteenth senatorial district, and thereupon
that they, the said defendants, did regard the return, hereinbefore
called the Mylod return, and did not consider the other return, here-
inbefore mentioned, which had thereafter been filed pursuant to the
statute and the order of the court, as aforesaid, and which was in the
possession of them, the said defendants, at the time of such meeting,
and did issue their certificate of election, whereby they certified and
declared that said Edward B. Osborne had received the greatest number
of votes in the counties of Columbia, Putnam and Dutchess for the
position of senator for the fifteenth senatorial district.
And it appearing that defendants, in canvassing the said returns
from said counties aforesaid, and in issuing their certificate of elec-
tion aforesaid, were guilty of the offense of contempt of this court,
and that such contempt was calculated to and actually did defeat,
impair and prejudice the rights and remedies of the relators herein;
and that such disobedience was not wilful.
294 Volume 5.
6240. CONTEMPT. 6240.
And it not having been shown that any actual loss or injury has
been produced to the said relators by reason thereof, and due proof
having been given to the complainant's costs and expenses in prose-
cuting these proceedings to punish these defendants, for such con-
tempt aforesaid, including a reasonable counsel fee, and the amount
of such costs, including such reasonable counsel fee, being the sum of
$550, and the amount of such expense being the sum of $281.2,
making a total sum of $831.28, as the amount of the complainant's
costs and expenses herein.
Now, on motion of Messrs. Leavitt, Wood & Keith, attorneys for the
relators, it is ordered and adjudged as follows:
That in canvassing, as aforesaid, the said election returns from
the fifteenth senatorial district for the office of senator for that
district, on December 29, iS91, and in issuing their certificate of elec-
tion, in which they declared that Edward B. Osborne had received
the greatest number of votes in the counties of Columbia, Putnam
and Dutchess, for the office of senator from said district, they, the
said defendants, were guilty of contempt of this court, and that such
contempt was calculated to and actually did defeat, impair, impede
and prejudice the rights and remedies of the relators herein.
And it is further ordered and adjudged that the said defendants,
frank Rice, Edward Wemple, Charles F. Tabor, Elliot F. Danforth
and John Bogart be and they are hereby fined in the sum of $831.28,
the amount of the complainant's costs and expenses, as aforesaid, and
that they pay the said sum of $831.28 to Messrs. Leavitt, Wood 6
Keith, the attorneys for the relators herein.
Enter in Albany county.
Samuel Edwards, Justice Supreme Court.
d. Upon Report of Referee.
Form No. 6240.'
At a Special Term of the Supreme Court held at the Court-house in
the City of Utica, in and for the County of Oneida and State of New
York, on the 15th day of June, iS89.
Present : Hon. Milton H. Merwin, Justice Presiding.
Rozellen Aldinger }
vs. >
Emery S. Pugh. )
The People, ex rel. Rozellen Aldinger,
vs.
Stephen J. Pugh.
An action having been commenced in this court by Rozellen Al-
dinger, the above named plaintiff, against Emery S. Pugh, the above
named defendant, for the purpose, among other things, of restraining
the defendant from selling and disposing of a quantity of hay then
situate on the farm of the plaintiff in the town of Frankfort, Herkimer
county, New York, and the said plaintiff having on the seventh day of
1, This form is copied from the records in Aldinger v. Pugh, 132 N. Y. 403.
295 Volume 5.
6240. CONTEMPT. 6240.
December, 1888, duly obtained an injunction order in said action in
and by which the said defendant, Emery S. Pugh, and his servants,
agents, assistants and assigns, and each of them were ordered and
enjoined during the pendency of the action or until the further order
of this court absolutely to desist and refrain from selling, disposing
of or drawing away any of the hay on the farm mentioned in the
complaint in said action which the defendant had leased of the plain-
tiff and was then occupied by the defendant, situate as aforesaid in
the town of Frankfort, Herkimer county and state of New York, and
the summons and complaint and said injunction order, together
with the papers upon which it was granted, having been duly served
on the defendant on the seventh day of December, 1888, and an order to
show cause having been duly granted in said action on the thirty-first
day of December, 1888, directing Emery S. Pugh, the said defendant,
Stephen J. Pugh, Michael Leary and the Utica and Mohawk Railroad
Company, and each of them, to show cause at the Special Term of this
court, held at the court-house, city of Utica, New York, on the eighth
day of January, i889, why they and each of them should not be pun-
ished for their alleged contempt, offenses -and misconduct for having
knowingly and wilfully violated said injunction order, and having, on
the twenty-second and the twenty-fourth day of December, 1888, drawn
away from said farm and disposed of a quantity of the hay mentioned
and referred to in said injunction order, and the said order to show
cause and the papers upon which it was granted having been duly
served on each of said parties, and upon the return of said order to
show cause, Edward Lewis, Esq., an attorney and counsellor at law of
Utica, New York, having duly appeared for said Emery S. Pugh and
Stephen J. Pugh, and William E. Lewis, Esq. , an attorney and counsellor
of law, of said city, having duly appeared for said Michael Leary and
Utica and Mohawk Railroad Company, and after hearing Henry F. 6r*
James Coupe for the plaintiff in said action in- favor of the relief asked
for in said order to show cause, and said Messrs. Lewis, attorneys for
the said parties, to whom the order was directed, in opposition
hereto, and said matter was by an order of the court granted that
day, duly referred to Charles G. Irish, Esq., a counsellor at law in
the city of Utica, New York, as referee to take the examination or
testimony of the parties to this proceeding and their witnesses of the
facts charged as to whether defendant violated said injunction order,
and if violated, whether such violation was wilful, and whether
Stephen J. Pugh, Michael Leary, and the Utica and Mohawk Railroad
Company, or either of them, knowingly or wilfully violated said
injunction order, or whether they, or either of them, aided or abetted
the defendant in violating the same in the removing from the farm
of the plaintiff, situated in the town of Frankfort, Herkimer county,
New York, on the twenty-second and twenty-fourth days of December,
1888, a quantity of hay, in violation of said injunction order, and the
value of the hay drawn away from said farm, if any, and if said
injunction order was so violated by said parties, or either of them,
did the same defeat, impede, impair or prejudice the rights of the
plaintiff in the action, and to what extent, and the damages sustained
by the plaintiff, and that he report said facts and return the testi-
296 Volume 5.
6240. CONTEMPT. 6240.
mony taken by him, together with his opinion, to the Supreme Court,
and the said referee, having been duly attested'by said parties and
their witnesses, and having duly made his report thereon to this
court, in which he states that in his opinion the said Stephen J. Pugh
on the twenty -second and twenty-fourth days of December, 1888, drew
from said premises eleven tons of hay of the value of $132, and that
by said removal the defendant, Emery S. Pugh, and said Stephen J.
Pugh, and each of them knowingly and wilfully violated said injunc-
tion order; the defendant in permitting the said Stephen J. Pugh to
so remove said hay, and the said Stephen J. Pugh in aiding and abet-
ting and assisting the defendant to remove, and draw away and dis-
pose of the said hay, the same being a part of the hay referred to in
and restrained by said injunction order, and that they and each of
them should be punished therefor.
And the said referee having further reported that in his opinion
the order to show cause should be dismissed as to Michael Leary and
the Utica and Mohawk Railroad Company, and a motion having been
made at a Special Term of this court, held at the court-house in the
city of Syracuse, New York, on the twenty-fifth day of May, i889, for
an order confirming said report of the referee and adjudging the
defendants Emery S. Pugh and Stephen J. Pugh guilty of contempt
for having wilfully violated said injunction order as above charged
and alleged and punishing them therefor by fine or imprisonment or
both, and that a commitment issued against them accordingly; and
the court having ordered said matter to Mr. Justice Merwin at this
term of court, and the matter having been duly brought to a hearing,
and after reading and filing the report of said referee, dated May
10th, i889, and the testimony taken by them, the affidavit of Henry
F. Coupe, verified May 17th, i889, the written opinion of the Court,
Merwin, Justice; Special Term, January 8th, i889, disposing of the
matter which came up on the order to show cause, the affidavits of
William E. Lewis, verified May 16th, i889, and after hearing Wm. E.
Lewis in favor of confirming said referee's report as to the Utica and
Mohawk Railroad Company and Michael Leary, and Henry F. cr* James
Coupe, plaintiff's attorneys, in favor of the motion above mentioned,
and Edward Lewis in opposition hereto
It is hereby considered and adjudged that the defendants Emery
S. Pugh and Stephen J. Pugh are guilty of a contempt in having
knowingly and wilfully disobeyed the said injunction order granted
in said action. The said Emery S. Pugh in causing and permitting
eleven of the tons of the hay mentioned in and restrained by said
injunction, of the value of $132, to be removed, drawn away and dis-
posed of while said injunction order was in force, to wit, on the
twenty-second and twenty-fourth days of December, 1888. The said
Stephen J. Pugh, in having with full knowledge of said injunction
order, of its contents, and of the service of it on the said defendant,
while acting as the agents, servant and assistant of the said defend-
ant, aided and abetted the said defendant, Emery S. Pugh, in said
removing, drawing away and disposing of said eleven tons of hay on
the said twenty- second m& twenty- fourth days of December, 1888, and
that said violation of said injunction order was calculated to and
297 Volume 5.
6241. CONTEMPT, 6241.
actually did defeat, impede, impair and prejudice the rights and reme-
dies of the plaintiff in said action.
It is further considered and adjudged and ordered that the said
Emery S. Pugh and Stephen J. Pugh pay a fine of 100 referee's fees,
$.77 witness fees, 50 counsel fees and 10 costs of this motion, in all
the sum of one hundred and seventy-seven dollars ($-777), to be paid to
the plaintiff herein, Rozellen Aldinger, to satisfy her costs and expenses
in the premises, and that they stand committed to the common jail
of Oneida county until said fine be paid.
It is further ordered and adjudged that the said order to show
cause, and these proceedings against Michael Leary and Utica and
Mohawk Railroad Company be and they are hereby dismissed, and
that the plaintiff in said action, said Rozellen Aldinger, pay to them
or their attorney, William E. Lewis, Esq., $10 costs on said order to
show cause, and $10 costs of reference, and $10 costs of this motion ;
and in all, thirty dollars ($#0)
Enter: M.H.M.
7. Commitment. 1
a. For Contempt in Facie Curise.
Form No. 6241.
(Precedent in Hill v. Crandall, 52 111. 71.)*
State of Illinois, \
Will County. ) '
The People of the State of Illinois to the Sheriff of said County:
Whereas, on the 19th day of August, A. D. \W8, while Edward W.
Crandall, one of the justices of the peace in and for said county, was
engaged listening to a motion made before him for a continuance of
a cause then pending at his office in Joliet, wherein Jacob Powles was
the plaintiff, zx\&Isaac Noabes the defendant, Charles A. Hill, attorney
for the said plaintiff, did wilfully and contemptuously resist said
motion after the court had given him, the said Charles A. Hill, notice
that the said motion had been granted, and being ordered by the said
justice to cease, refused to do so, and said that the said justice could
"fine and be damned." And whereas, the said Charles A. Hill was
forthwith called upon by the said justice and required to answer for
said contempt, and to show cause why he should not be convicted
thereof, but did not make any defense except to deny the jurisdiction
of the said justice, and did not make any apology for his said con-
duct, and whereas the said justice did thereupon convict the said
Charles A. Hill of said contempt, and adjudge and determine that he
pay a fine of five dollars, and that he be committed to the common
jail of said county until he pay the said fine, or until he be discharged
1. See also forms in Clyma v. Ken- ceeding for contempt is in the nature of
nedy, 64 Conn. 313; In re Clayton, 59 a criminal proceeding, and when a per-
Conn. 510; Ex p. O'Brien, 127 Mo. son is guilty of contempt in open court,
486; People v. Cassels, 5 Hill (N. Y.) before a justice of the peace, the justice
165; Filler v. Probasco, 2 Browne may direct his warrant for the arrest of
(Pa.) 138. the offender to the sheriff of the county.
2. It was held in this case that a pro- Hill v. Crandall, 52 111. 70.
298 Volume 5.
6242. CONTEMPT. 6243.
by due course of law. We therefore command you, the said sheriff,
to take the said Charles A. Hill, and deliver him to" the keeper of the
common jail of said county, together with this warrant; and you, the
said keeper, are hereby required to receive him into your custody in
the said jail, and him there safely keep until he pay the said fine, or
until he shall be discharged by due course of law. Hereof fail not at
your peril.
Given under my hand and seal this 21st day of August, A. D. 1868.
E. W. Crandall, J. P. (SEAL)
Form No. 6242.
(Precedent in Morrison v. McDonald, 21 Me. 551.)
State of Maine. Penobscot, ss. Whereas at a municipal court for the
city of Bangor, in the county of Penobscot, holden at said Bangor, on the
twenty-first day of January, A. D. iB39.
Reuben S. Prescott appeared with a commission from the Governor,
and having been duly qualified as recorder of said Court, and also with
a notice from the Secretary of State directed to Samuel Morrison, noti-
fying him that Reuben S. Prescott of Bangor had by the Governor, with
the advice and consent of Council, been duly appointed recorder in his
stead, and had been commissioned accordingly, which said notice was
read by said Prescott in the hearing of said Morrison, and delivered to
him in hand by said Prescott. Whereupon t"he Court directs said Pres-
cott to take charge of the papers and records of said Court, and said
Prescott attempting to take charge of the same is resisted by said
Morrison, and the said Samuel Morrison claiming to be Recorder of said
Court, and not recognizing the authority of the Governor and Council
to remove him in the manner they have exercised said authority; there-
fore the Court order and direct, that the said Morrison be committed
to the common jail in Bangor \\\ said county for contempt of Court by
indecent behavior in thus withholding the records and resisting the
Recorder of said Court, and thus insulting said Court and obstructing
it in the due and lawful exercise of its duties, against the peace of said
State.
Wherefore in the name of said State, you are commanded to convey
the said Samuel Morrison to the common jail in said Bangor and there
deliver him to the keeper thereof with this precept; and the said
keeper is alike commanded to receive the said Morrison into his cus-
tody in said jail, and him there keep for want of sureties, or until he
be otherwise discharged by due course of law.
Witness, John McDonald, our said Judge, at Bangor aforesaid, this
twenty- first day of January, A. D. 1&39.
R. S. Prescott, Recorder.
Form No. 6243.
(Precedent in People v. Sheriff, 7 Abb. Pr. (N. Y. Supreme Ct.) gy.) 1
The People of the State of Nav York, to the Sheriff of the City and
County of New York, greeting:
1. This commitment is regular and sufficient in form, and contains the cause
of the alleged contempt plainly charged therein.
299 Volume 5.
6243. CONTEMPT. 6243.
Whereas, in a certain action pending in the Court of Common Pleas,
for the city and county of New York, between John H. McCunn and
James Moncrief, plaintiffs, and John McKechnie, defendant, for the
recovery of a certain lot of land in the said city of New York, one
John F. Bettz had been examined upon the trial thereof as a witness
for the defendant, and upon such examination had sworn that he
claimed the title to the said land; that the said defendant was his
tenant, and that he, the said Bettz, was defending the said action as
the landlord of the said defendant, and being asked whether he had
in his possession any old deeds, leases or assignments relating to the
said land, and having answered that he had received from his grantors
a certain lease and other papers which he had kept in his possession
until a few days before the said trial, when he had delivered them to
John W. Mitchell, his attorney, and the attorney of the said defend-
ant in the said action; and being asked to produce the said old lease
and other papers, answered that he was unable to do so because they
were in the possession of the said Mitchell, who was then in court,
acting as the attorney and counsel of the defendant in the said trial.
And whereas the said John W. Mitchell, who is a counsellor of the
Supreme Court of the State of New York, and of the Court of Common
Pleas of the city and county of New York, and counsel for the defend-
ant in the said action, pending in the said Court of Common Pleas,
between John H. McCunn and James Moncrief, plaintiffs, and John
McKechnie, defendant, being then placed under examination, as a
witness for the plaintiff in the said action, upon the trial thereof be-
fore the said Court of Common Pleas, at a special term thereof, held at
the City Hall of New York, on the 22 d day of May, i858, was asked a
question material and pertinent to the issue, wherein, that is to say,
whether he had in his possession any deed, lease, or other papers
delivered to him by one John F. Bettz. And whereas the said John
W. Mitchell said he could not state whether there was any such deed,
lease or other papers, without looking at a bundle of papers then
being in court and in his possession, and thereto brought by him.
And whereas the said John W. Mitchell was thereupon, during the
sitting, and in the presence of the court, and by the direction of the
said court, directed to look at said bundle of papers, for the purpose
of answering the said question, which he refused to do; and whereas,
after having so declined to make such examination, and pending the
consideration, by the court, of a motion for his commitment, then to
the said court made, upon the ground of such refusal, he, the said
John W. Mitchell, gave the said lease and other papers to his client,
with instructions to take them from the said court to the office of his
counsel; and whereas the examination of the said Mitchell being by
regular adjournment of the said trial, continued on the 27th May,
aforesaid, he was then examined, and admitted that he had in his
possession the paper thus received from the said Bettz, and he was
then asked whether he would state what said papers were, and he
answered that he could not, without examining them; and he was
then asked whether he would look at the papers, and state what they
were, so far as to identify them, and he answered that he would not;
and he was then asked to look at the papers, and state what they
300 Volume 5.
6244. CONTEMPT. 6245.
were, and he refused to do so, though thereto required by the court;
and he was further asked to produce the said papers, and though
required by the court to do so, refused, and gave as his reasons for
refusing, that to answer would be a breach of his privilege as attor-
ney for the defendant; and whereas all the said questions were ma-
terial and pertinent to the issue in the said action; and whereas it
appears that the said John IV. Mitchell, before his said examination,
was duly served with a subpoena duces tecum requiring him to appear
on the days and at the times and places aforesaid, and produce the
said papers, and has been paid his fees thereon; and whereas the said
John W. Mitchell 'has thus been guilty of contemptuous behavior in the
immediate view and presence of the said Court of Common Pleas, during
its sitting, tending directly to interrupt its proceedings, and impair
the respect due to its authority ; and whereas the aforesaid misconduct
of the said Mitchell was calculated to impair or defeat the rights of
the plaintiff in the said action; and whereas the said John W. Mitchell,
for the cause aforesaid, was adjudged to be guilty of contempt of the
said court. Now, therefore, you are hereby ordered to take the body
of said John W. Mitchell, and commit him to the common jail of the
city and county of New York, and there keep him in prison for the
space of ten days, or until he be sooner discharged according to law.
Witness, John R. Brady, Judge of the said Court of Common Pleas,
of the City Hall, in the city of New York, the 27th day of May, iB58.
Nathaniel Janris, Clerk.
Form No. 6244.
(Precedent in In re Stokes, 5 S. Car. 71.)'
State of South Carolina, ) T ~. ., ^
... ~ ' \ In Circuit Court.
Greenville County. f
R. H. Earle, plaintiff, }
against
Edward F. Stokes, defendant. )
A notice having been made by the Court on the 25th day of July,
A. D. i872, that the defendant herein should appear before this Court
and answer such questions as may be propounded to him, touching
his property, and the said defendant refusing to be so sworn and
answer, it is ordered that he be held by the Sheriff in close confine-
ment until such time as he shall make such answer.
T. H. Cooke.
September 12, i875.
b. For Failure to Obey.
(1) DECREE IN CHANCERY.
Form No. 6245.
(Precedent in Stimpson v. Putnam, 41 Vt. 244.)
State of Vermont, \ To any sheriff or constable in the state,
Orleans County, ss. \ greeting:
1. The petitioner's motion for discharge from detention under and by virtue
of this warrant was denied.
301 Volume 5.
6246. CONTEMPT. 6246.
By the authority of the state of Vermont you are hereby com-
manded to attach the body of Alfred W. Putnam, of Newport in said
county, and, unless he shall forthwith pay, or cause to be paid, the
several sums of money in the foregoing decree of the court of chan-
cery ordered to-be paid, the said Alfred W. Putnam having been
adjudged guilty of a contempt as is therein set forth, you will proceed
and commit the said Putnam to prison in the common jail in Iras-
burgh in said Orleans county, and you will lodge with the keeper of
said prison a true and attested copy of this precept and of the fore-
going decree; and the keeper of said prison is commanded to receive
the said Putnam within said prison, and to keep and hold him as a
prisoner within said prison until he shall pay said several sums, inter-
est and cost, as in said decree required.
Given under my hand, at Newport in the county of Orleans, this
7th day of April, A. D. 1868.
Benj. H. Steele, Chancellor.
(2) INJUNCTION.
Form No. 6246.
(Precedent in Matter of Sloan, 5 N. Mex. 638.)
The Territory of New Mexico to Francisco Chavez, sheriff of the
county of Santa Fe, greeting:
Whereas on the 12th day of November, i890, an injunction was
issued out of the district court of Santa Fe county enjoining and
restraining John H. Sloan, George L. Wyllys and Teodoro Martinez,
both individually and as members of the board of county commis-
sioners of said Santa Fe county, their agents, servants, or ordering
or causing to be made or delivered, any certificate of election to
the offices of members of the house of representatives of the legisla-
tive assembly of the territory of New Mexico, and of member of the
council of said legislative assembly, to any person or persons other
than Benjamin M. Read, Joseph B. Mayo, and Thomas B. Catron, and
from making, or causing to be made, any record of the result of their
canvass of the election returns of the election held in said county of
Santa Fe on the 4th day of November, i890, until the further order
of said district court in the premises. And whereas, on the nth day
of January, i891, there was filed in the office of the clerk of said
court the petition of the said Thomas B. Catron, setting forth that
the said John H. Sloan and Teodoro Martinez, two of the defendants
in said injunction proceedings, wholly disregarding the injunction so
issued as aforesaid, did, on the 5th day of December, i890, sitting as a
board of canvassers of said county, canvass the returns of the general
election held in said county on the 4th day of November, i890, and
did on said 5th day of December, i890, make, order, and deliver a
certificate of election to the offices of members of the house of repre-
sentatives of the legislative assembly to persons other than the said
Benjamin M. Read, the said Joseph B. Mayo and the said Thomas B.
Catron, to wit, to one Charles F. Easley, to one Thomas P. Gable, and
to one Romulo Martinez; the said Easley and the said Gable receiving
certificates of election to the office of member of the house of repre-
302 Volume 5.
6247. CONTEMPT. 6247.
sentatives of the legislative assembly, and the said Romulo Martinez
receiving a certificate to the office of member of* the council of said
legislative assembly; and praying that that court cause attachments
to issue for the arrest of the said John H. Sloan and Teodoro Martinez
for contempt. Whereupon such proceedings were had by the said
court that on January 20, i8.9.7, after attachments had been issued
by said court against the said John H. Sloan and Teodoro Martinez,
and after the bodies of the said Sloan and the said Martinez had been
presented before the said court by you, the said sheriff, they being
accompanied by counsel, and after a full hearing of counsel, the said
John H. Sloan and Teodoro Martinez were adjudged guilty of con-
tempt of this court in issuing and delivering a certificate of election
to Romulo Martinez, and in making, or causing to be made, a record of
the result of their canvass of the returns of the election held in said
county of Santa Fe on the 4th day of November, \WO, and the punish-
ment of each of said defendants was assessed to a fine of fifty dollars
for each of the said several contempts, making a total of two hundred
dollars against each of said defendants: Now, therefore, you, the
said sheriff of Santa Fe county, are hereby commanded that of the
lands and tenements, goods and chattels, of John H. Sloan, in your
county, you cause to be made the sum of two hundred dollars fine,
and seventeen dollars and forty-five cents costs of suit, which, by the
said judgment of the said district court on the 20th day of January,
iS91, the territory recovered against the sa\& John H. Sloan and in
default of the prompt payment of the said sum by the said John H.
Sloan that you confine the body of the said John H. Sloan in the
common jail of said county until said fine and costs are fully paid
and satisfied, and due return made of this writ, with your proceed-
ings thereon.
Witness the Honorable Edward P. Seeds, associate justice of the
supreme court of the territory of New Mexico, and judge of the first
judicial district court thereof, and the seal of said district court, this
20th day of January, i891.
A. E. Walker, Clerk. (SEAL)
(3) ORDER TO PAY MONEY TO RECEIVER.
Form No. 6247.
(Precedent in Cartwright's Case, 114 Mass. 237.)
To the sheriff of our county of Suffolk, his deputies, and the keeper
of our common jail in Boston in said county, Greeting.
(SEAL) Whereas, by the consideration of our Supreme Judicial
Court, holden at Boston, within and for our said county of Suffolk, on
the second Tuesday of September, eighteen hundred and seventy-three,
John W. Cartwright, of said Boston, was adjudged to be guilty of con-
tempt of our said court, for having disobeyed an order made in a
cause pending in our said court by one of the justices thereof, and for
having unlawfully appropriated to his own use a portion of the assets
of the Hide & Leather Insurance Company, one of the parties to said
cause, in the hands of the receivers appointed in said cause by our
said court, the said John W. Cartwright being one of the said re-
803 Volume 5.
6248. CONTEMPT. 6248.
ceivers; and on the fifty-ninth day of the session of our said court,
being the third day of January in the year eighteen hundred and
seventy-four, was sentenced for his said misconduct to suffer imprison-
ment in our said jail for the term of six months, unless he shall be
sooner discharged by the further order of our said court:
We therefore command you, the said sheriff and deputies, forth-
with to convey and deliver into the custody of the keeper of our said
jail the body of the said John W. Cartwright. And you, the keeper
of our said jail, are hereby required to receive the body of the said
John W. Cartwright, and cause him to be confined in our said jail for
the full term of six months, unless he shall be thence sooner dis-
charged by the further order of our said court.
And for so doing, this shall be your warrant. And you are to
make a return of this warrant, with your doings thereon, to the officer
of the clerk of the said Supreme Judicial Court at Boston aforesaid.
Witness, Horace Gray, Esquire, chief justice of said court. Dated
at Boston aforesaid the tAird day vi January \T\ the year of our Lord
eighteen hundred and seventy-four, and sealed with the seal of the
said court.
George C. Wilde, Clerk.
c. By Canal Commissioners.
Form No. 6248.
(Precedent in People v. Learned, 5 Hun (N. Y.) 627.)'
The People of the State of New York to the Sheriff of the County of
Albany, greeting:
Whereas, in a certain investigation of the affairs of the canals of
the State of New York pending before a commission appointed to
investigate the affairs of the canals of the State, duly appointed
under and by virtue of the authority of the legislature of the State
of New York, one Henry D. Denison had two certain contracts with
the people of the State of New York for the performance of work
upon the canals of the State, one of said contracts being for the per-
formance of work, between Port Schuyler and the lower Mohawk
aqueduct, and the other of said contracts being for the performance
of work at Utica, from the eastern limits of the city of Utica to the
junction of the Chenango canal. And, whereas, the said commission
was investigating the subject of the said contracts of the said Henry
D. Denison. And, whereas, the said Henry D. Denison had been
duly subpoenaed to attend before such commission, to give such
information touching the subject of the inquiry of said commission
as might be in his possession, and had been further ordered, by said
subpoena, to bring with him before said commission all his books and
papers relative to his contracts with the State to be performed
between Port Schuyler and the lower Mohawk aqueduct, and at Utica,
from the eastern limits of the city of Utica to the junction of the
Chenango canal, and had been paid his fees upon said subpoena.
1. This commitment was authorized by N. Y. Laws (1875), c. 91, which act
was held to be constitutional.
304 Volume 5.
6249. CONTEMPT. 6249.
And, whereas, the said Henry D. Denison did "appear before said
commission, said commission being then duly organized and holding
a regular meeting to investigate the affairs of the canals of the
State, on the 14th day of July, i875, and did then and there admit
and declare that he had in his possession books and papers relative
to his said contracts with the State for work to be performed
between Port Schuyler and the lower Mohawk aqueduct, and at Utica,
from the eastern limits of the city to the junction of the Chenango
canal, and did then and there, in the immediate presence of said
commission, wilfully refuse to produce said books before said com-
mission, and to obey such subpoena.
And, whereas, the said Henry D. Denison has thus been guilty of
wilful disobedience of process lawfully issued by said commission to
investigate the affairs of the canals of the State, and of contemptuous
behavior in the immediate view and presence of said commission
during its sitting, tending directly to interrupt its proceedings and
impair the respect due to its authority.
And, whereas, the aforesaid misconduct of the said Henry D.
Denison is calculated to impair or defeat the rights of the State in
said investigation.
And, whereas, the said Henry D. Denison, being now here before
this commission, has, for the causes aforesaid, been adjudged guilty
of contempt of the said commission, now, therefore, you are hereby
ordered to take the body of the said Henry D. Denison and commit
him to the common jail of the county of Albany, and there keep him
imprisoned until he shall have consented to produce and shall pro-
duce to and before this commission all his books and papers relative
to contracts with the State for work to be performed between Port
Schuyler and the lower Mohawk aqueduct, and at Utica, from the
eastern limits of the city to the junction of the Chenango canal, not
exceeding thirty days.
Witness the hands of this commission, affixed hereto at the present
sitting of this commission appointed to investigate the affairs of the
canals of the State, at the capital, in the city of Albany, the IJfth day
oijuly, 1 875.
John Bigelow.
D. Magone.
A. E. Orr.
John D. VanBuren, Jr.
Commissioners.
8. Criminal Prosecution. 1
1. For statutes relating to the punish- Minnesota. Stat. (1894), 6407,
ment of contempts as misdemeanors 6819.
see as follows: Montana. Pen. Code (1895), 293,
Arizona. Pen. Code (1887), 250, 1223.
1035. New York. Birds. Rev. Stat. (1896),
California. Pen. Code (1897), p. 635, 23.
166,657,658,1331. . North Dakota. Rev. Codes (1895),
Idaho. Rev. Stat. (1889), 6529. 7015, 7687.
Michigan. How. Anno. Stat. (1882), Oklahoma. Stat. (1893), 2039,
I 7239- 2556.
5 E. of F. P. 20. 305 Volume 5.
6249. CONTEMPT. 6249.
Form No. 6249.'
In the Court of Sessions of the county of Albany.
Of June Term in the year of our Lord one thousand eight hundred
and seventy-four.
City and County of Albany, ss:
The jurors for the people of the State of New York, in and for the
body of the City and County of Albany, being then and there sworn
and charged upon their oath,
Present, That on the twenty-fifth day of April, in the year of our
Lord one thousand eight hundred and seventy-four, at the city and
county aforesaid, a certain writ of the people of the State of New
York, called a subpoena, was duly and lawfully issued and tested
by and in the name of T. R. Westbrook, one of the justices of the
Supreme Court of said state, on the day and at the city aforesaid,
which said writ was directed to Frank R. Sherwin, by the name of F.
R. Sherwin, and by which said writ he was, in the name of said peo-
ple, commanded that laying aside all pretenses and excuses what-
soever, he appear in his proper person before the Court of Oyer and
Terminer, to be held at the City Hall in the City of Albany, in and
for said County of Albany, on the eighteenth day of May, eighteen
hundred and seventy-four, at three o'clock in the afternoon of that day,
then and there to testify and give evidence on behalf of said people
concerning a certain indictment to be tried in said court against
Charles H. Phelps i or grand larceny No. 2\ that the said writ of sub-
poena was on the first day of May, in the year of our Lord one thou-
sand eight hundred and seventy-four, at the City of New York, in the
said State of New York, exhibited to the said Frank R. Sherwin and
duly served upon him the said Frank Sherwin, and a copy of the
said writ was then and there delivered to the said Frank R. Sherwin
and left with him, who then and there had notice to appear and give
evidence according to the exigency of said writ. Yet the said Frank
R. Sherwin, continuing and intending to impede and obstruct the
due course of justice, unlawfully and wilfully disobeyed the said writ
Utah. Rev. Stat. (1898), 4491, thority has been contemned, the ad-
4492. ministration of public justice assailed,
Wisconsin. Sanb. & B. Anno. Stat. and its power despised. For such an
(1889), 4503. offense the guilty party may be pun-
1. This form is copied from the rec- ished by indictment, although the court
ords in People v. Mead, 92 N. Y. 415, whose order has been disobeyed may
wherein it was held that it was not take the indignity in silence. The
necessary to the validity of the indict- statute has made such disobedience,
ment that the accused should first have when wilful in its character, an offense
been duly adjudged in contempt by the against the people, and not left it de-
court whose process he disobeyed. The pendent upon the action or nonaction
two proceedings are wholly independ- of the specific judge or court. The
ent of each other. One who disobeys statute contemplates that both rem-
the lawful order of a court not only edies, or either, may be pursued. If
offends against the dignity of the par- the court has first moved and proceeded
ticular tribunal, but also against the against the offender by attachment and
public law. The particular court may inflicted punishment, he may neverthe-
pass over the contempt and suffer its less be indicted for the same wrong,
order to be spurned, but the offense but in that event the sentence is to be
against the people remains. Their au- affected by the previous punishment.
306 Volume 5.
6249. CONTEMPT. 6249.
of subpoena, and did not appear before the said Court of Oyer and
Terminer, holden at the time and place specified in the said writ of
subpoena, to testify to the truth and give evidence before the said
court on the trial of said bill of indictment so preferred against the
said Charles H. Phelps, to the great hindrance and delay of public
justice, in contempt of the court aforesaid, against the form of the
statute in such case made and provided, and against the peace of the
people of the State of New York and their dignity.
Second count. And the jurors aforesaid, upon their oath afore-
said, do further present:
That on the twenty-fifth day of April in the year of our Lord one
thousand eight hundred and seventy-four, at the city and county afore-
said, a certain process, commonly called a subpoena, was duly and
lawfully issued by Nathaniel C. Moak, the District Attorney of the
County of Albany, in support of the foreclosure of a certain indict-
ment then pending in the Court of Oyer and Terminer in and for said
county against Charles H. Phelps for grand larceny No. 2, and sub-
scribed by the said district attorney, and tested by and in the name
of T. R. Westbrook, one of the justices of the Supreme Court of said
State, on the day and at the city aforesaid, which said process of sub-
poena was directed to Frank R. Sherwin, by the name of F. R. Sher-
unn, and by which said process of subpoena he was, in the name of the
people of the State of New York, commanded that, laying aside all
pretenses and excuses whatsoever, he appear in his proper person be-
fore the Court of Oyer and Terminer to be held at the City Hall in the
City of Albany, in and for said County of Albany, on the eighteenth day
of May, eighteen hundred and seventy-four, at three o'clock in the after-
noon of that day, then and there to testify and give evidence on behalf
of said people concerning a certain indictment to be tried in said court
against Charles H. Phelps for grand larceny No. 2; that the said process
of subpoena was, on the first day of May, in the year of our Lord one
thousand eight hundred and seventy-four, at the City of New York, in
the said State of New York, exhibited to the said Frank R. 'Sherwin,
and duly served upon him, the said Frank R. Sherwin, and a copy of
the said subpoena was then and there delivered to the said Frank R.
Sherwin, and left with him, who then and there had notice to appear
and give evidence according to the exigency of said process of sub-
poena. Yet the said Frank R. Sherwin, contriving and intending to
impede and obstruct the due course of justice, unlawfully and wil-
fully disobeyed the said process of subpoena, and did not appear
before the said Court of Oyer and Terminer holden at the time and
place specified in the said process of subpoena, to testify to the truth
and give evidence before the said court on the trial of said bill of
indictment so preferred against the said Charles H. Phelps, to the
great hindrance and delay of public justice in contempt of the court
aforesaid, against the form of the statute in such case made and pro-
vided, and against the peace of the people of the State of New York
and their dignity.
Nathaniel C. Moak, District Attorney.
307 Volume 5.
6250. CONTEMPT. 6251.
II. CONTEMNOR'S DEFENSES AND REMEDIES.
1. Answers,
a. To Rule to Show Cause OP Attachment. 1
Form No. 6250.
(Precedent in In re Ayers, 123 U. S. 456.) 2
Answer of Defendant, R. A. Ayers.
The answer of R. A. Ayers, Attorney-General of the State of Vir-
ginia, to a rule awarded against him by this honorable court.
To the Honorable Judge of the Circuit Court of the United States
for the Eastern District of Virginia:
By an order entered in the chancery cause of James P. Cooper
et als. against Morton Marye and others, summoning him to show
cause why he should not be fined and imprisoned for disobeying the
injunction heretofore awarded in said suit, restraining him and others
from instituting the suits required by an act of the General Assembly
of Virginia, entitled "An act to provide for the recovery by motion
of taxes and certain debts due the Commonwealth, for the payment of
which papers purporting to be genuine coupons of the Common-
wealth have been tendered," approved May 12, 1887, by instituting
a suit against the Baltimore and Ohio Railroad Co., respondent,
answering, says that he admits that he instituted the suit against the
Baltimore and Ohio Railroad Company to recover taxes due by it to
the State of Virginia after he had been served with the injunction
order in this case ; that he instituted the said suit because he was there-
unto required by the act of the General Assembly of Virginia afore-
said, and because he believed this court had no jurisdiction whatever
to awarded the injunction violated. Respondent disclaims any
intention to treat the court with disrespect, and states that he
has been actuated alone with the desire to have the law properly
administered.
R. A. Ayers, Att'y-Gen'l of Virginia.
Subscribed and sworn to before me this 8th day of October, iB87.
M. F. Pleasants, Clerk.
b. To Interrogatories.
Form No. 6251 . 3
{Title of court and cause as in Form No. 6224.)
The defendants herein, except defendant Richard S. Roberts, sever-
1. See also various forms of answers orders forbidding the suits, for bring-
in the following cases: Martin v. Burg- ing which defendants are charged with
wyn, 88 Ga. 78; Shirk v. Cox, 141 Ind. contempt, they were not guilty of
301; Haskett v. State, 51 Ind. 176; contempt. See also, in regard to want
Whittem v. State, 36 Ind. 196; Winslow of jurisdiction as a defense, People -v.
v. Nayson, 113 Mass. 411; In re Robin- O'Neil, 47 Cal. log; Brown v. Moore,
son, 117 N. Car. 535; Boyett v. 61 Cal. 432; State v. Smithers, 14 Kan.
Vaughan, 89 N. Car. 27; Young v. 629; Matter of Morton, 10 Mich. 208;
Cannon, 2 Utah 577. Forrest v. Price, 52 N. J. Eq. 16; Hol-
2. It was held in this case that as the man v. Austin, 34 Tex. 668.
circuit court had no power to make the 3. This form is copied from the record
308 Volume 5.
6251. CONTEMPT. 6251.
ally claiming and protesting that the facts hereby declared by the
answer to the interrogatories propounded to them under the order of
this court, made and entered on the ninth day of January, i882, con-
stitute no contempt of court, each for himself answers said interroga-
tories as follows:
To the First Interrogatory. I was, on the first day of January,
1 881, to and including the thirty-first day of December, i&81, one of
the aldermen of the city of Brooklyn; and I, said William Dwyer, was
elected as such in the second ward ; and I, the said John McCarthy,
was elected as such in the fifth ward ; and I, the said James Kane,
was elected as such in the sixth ward; and I, the said James Weir,
Jr., was elected as such in the eighth ward; and I, the said Daniel
O Connell, was elected as such in the ninth ward; and I, the said
Philip Casey, was elected as such in the tenth ward; and I, the said
James Donovan, was elected as such in the twelfth ward ; and I, the
said William J. LePine, was elected as such in the thirteenth ward;
and I, the said Felix W. Doyle, was elected as such in the fourteenth
ward ; and I, the said William Allison, was elected as such in the
fifteenth ward; and I, the said Philip Schmitt, was elected as such
in the sixteenth ward; and I, the said William H. Waters, was
elected as such in the seventeenth ward; and I, the said Thomas
Bowers, was elected as such in the eighteenth ward; and I, the said
Benjamin B. Seaman, was elected as such in the twenty-third ward;
and I, the said Patrick Kelly, was elected as such in the twenty-
fourth ward; and I, the said Thomas Armitage, was elected as such
in the twenty-fifth ward.
I was, during the time mentioned in said interrogatory, a member
of the common council of the city of Brooklyn.
To the Second Interrogatory. I was so served, and in the manner
specified in said second interrogatory.
To the Third Interrogatory. It was not. When such adjourn-
ment was made on December 27th, i881, I had formed no purpose
upon the subject. I had not then determined how I should vote if
said resolution should be at said adjourned meeting put upon its
passage. Nor did I know that it would be then put upon its passage.
To the Fourth Interrogatory. Not to my knowledge.
To the Fifth Interrogatory. I did attend said meeting, and it was
held at ten o'clock in the forenoon of said thirty-first day of December,
To the first paragraph of the Sixth Interrogatory. There was a
motion made to take from the table a communication from the mayor,
disapproving such a resolution, by William Dwyer.
To the second paragraph of the said Sixth Interrogatory. Such
communication was the disapproval by the mayor of such a resolution.
To the paragraph of the Seventh Interrogatory. There was a motion
made to adopt said resolution by William Dwyer.
To the paragraph of said Seventh Interrogatory. Said resolution
received a two-thirds vote, and I voted in the affirmative on its adop-
in the case of People v. Dwyer, 90 N. 6224. For other answers to interroga-
Y. 402. For the interrogatories to which tories see Stuart v. People, 4 111. 395;
this is the answer see supra, Form No. People v. Pearson, 4 111. 270.
309 Volume 5.
6252. CONTEMPT. 6252.
tion, and each of the persons named as defendant herein voted in the
affirmative, seventeen in all.
To the Eighth Interrogatory. Such motion was made and was lost.
I voted in the negative on said motion, and each of the persons named
as defendant herein so voted.
James Kane (and signature of fourteen others.')
State of New York, )
County of Kings, > ss.
City of Brooklyn. }
William Dwyer, John McCarty, James Kane, James Weir, Jr., Daniel
O'Connell, Philip Casey, James Donovan, William J. LePine, Felix W.
Doyle, William Allison, Philip Schmitt, William H. Waters, Thomas
Bowers, Benjamin B. Seaman, Patrick J. Kelly and Thomas R. Armitage,
being duly severally sworn, each for himself respectively deposes and
says, that he is one of the defendants in the above entitled proceed-
ings, and that the foregoing answers (by him signed) to the several
interrogatories propounded to him in said proceedings are true to the
best of his knowledge and belief.
James Kane (and signature of fourteen others?)
Severally sworn to before me, January 10th, 1888.
William M. Summers,
Notary Public, Kings Co., N. Y.
2. Petition for Revocation of Order of Commitment. 1
Form No. 6252.
(Precedent in Ex p. Terry, 128 U. S. 299.)*
In the Circuit Court of the United States, Ninth Circuit, Northern
District of California.
In the Matter of Contempt of David S. Terry.
To the Honorable Circuit Court aforesaid :
The petition of David S. Terry respectfully represents:
That all the matters and transactions occurring in the said court
on the 3d day of September, inst., upon which the order in this matter
was based, your petitioner did not intend to say or do anything dis-
respectful to said court or the judges thereof, or to any one of them;
that when petitioner's wife, the said Sarah Althea Terry, first arose
from her seat, and before she uttered a word, your petitioner used
every effort in his power to cause her to resume her seat and remain
quiet; and he did nothing to encourage her in her acts of indis-
cretion; when this court made the order that petitioner's wife be
removed from the court-room, your petitioner arose from his seat
with the purpose and intention of himself removing her from the
court-room, quietly and peaceably, and had no intention or design
of obstructing or preventing the execution of the said order of the
court; that he never struck or offered to strike the United States
marshal until the said marshal had assaulted himself, and had in his
1. See also a form in Tolleson v. this petition, or any other relief, and
People's Sav. Bank, 85 Ga. 176. an application for a writ of habeas
2. The circuit court declined and corpus was denied by the supreme
refused to grant the relief prayed for in court.
310 Volume 5.
6253. CONTEMPT. 6253.
presence violently, and, as he believed, unnecessarily, assaulted peti-
tioner's wife.
Your petitioner most solemnly avers that he neither drew or
attempted to draw any deadly weapon of any kind whatever in said
court-room, and that he did not assault or attempt to assault the
United States marshal with any deadly weapon in said court-room or
elsewhere.
And in this connection he respectfully represents that after he had
left said court-room he heard loud talking in one of the rooms of the
United States marshal, and among the voices proceeding therefrom
he recognized that of his wife, and he thereupon attempted to force
his way into said room through the main office of the United States
marshal ; the door of this room was blocked with such a crowd of
men that the door could not be closed; that your petitioner then for
the first time drew from inside his vest a small sheath knife, at the
same time saying to those standing in his way in said door, that he
did not want to hurt any one; that all he wanted was to get in the
room where his wife was; the crowd then parted, and your petitioner
entered the doorway, and there saw a United States marshal with a
revolver in his hand pointed to the ceiling of the room; some one
then said, " Let him in, if he will give up his knife," and your peti-
tioner immediately released hold of the knife to some one stand-
ing by.
In none of these transactions did your petitioner have the slightest
idea of showing any disrespect to this honorable court or any of the
judges thereof.
That he lost his temper he respectfully submits, was a natural con-
sequence of himself being assaulted when he was making an honest
effort to peacefully and quietly enforce the order of the court so as
to avoid a scandalous scene, and of seeing his wife so unnecessarily
assaulted in his presence.
Wherefore your petitioner respectfully requests that this honorable
court may, in the light of the facts herein stated, revoke the order
made herein committing him to prison for six months.
And your petitioner will ever pray, etc.
Dated September 12, 1888.
[David S. Terry.] 1
[(Verification.}}*
3. Order Discharging 1 from Imprisonment.
Form No. 6253.
(Precedent in Ex f. Ireland, 38 Tex. 350.)
The State of Texas.
To the District Court of Guadalupe County, and John F. Gordon,
Sheriff of said County, greeting:
1. The signature of the petitioner does but the verification is omitted from the
not appear in the reported case, but has reported case. For the form of a veri-
been added to render the form complete, fication in a particular jurisdiction con-
2. This petition was duly verified, suit the title VERIFICATIONS.
811 Volume 5.
6254. CONTEMPT. 6254.
Before our Supreme Court on the ninth day of May, i872, the appli-
cants, upon petition for habeas corpus, in the case of Ex parte John
Ireland, W. P. H. Douglass, John P. White, W. M. Rust, W. E. Good-
rich, W. H. Burgess and Alex, Henderson, to revise or reverse your
judgment in relation to said parties was determined, and therein our
Supreme Court made its order in these words:
"No. 1085. This day came the sheriff of Guadalupe county, in
obedience to the writ awarded in this cause, and brought with him
the prisoners, John Ireland, W. P. H. Douglass, John P. White, W. M.
Rust, W. E. Goodrich, W. H. Burgess, and Alex. Henderson, and
having made his return writ, George F. Moore and W. M. Walton,
Esquires, appeared in behalf of the applicants, and B. Trigg, Esquire,
District Attorney Twenty-seventh Judicial District, appeared in behalf
of the State; and the petition of the appellants, the writ and return,
with the evidence introduced, having been submitted to the court,
because it appears to this court that said applicants are illegally
restrained of their liberty; it is ordered by the court, that they be
discharged from the custody of the sheriff of Guadalupe county, and
that they be restored to their liberty; and this decision be certified
below for observance."
Wherefore we command you to observe the order of our said Supreme
Court in this behalf, and in all things to have it duly recognized,
obeyed and executed.
Witness the Hon. Lemuel D. Evans, Presiding Judge of our said
Supreme Court, with the seal thereof annexed, at Austin, this ninth
day of May, A. D. i87#.
(SEAL) W. P. De Normandie, Clerk.
4. Pardon.
Form No. 6254.
(Precedent in Ex p. Hickey, 4 Smed. & M. (Miss.) 753.)
Albert G. Brown, Governor of the State of Mississippi.
To the Sheriff of Warren County, Greeting:
Whereas it appears from a certified copy of certain proceedings
had in the circuit court of the county of Warren in this state, to wit,
on the 80th October, i&44, that Walter Hickey was by the order and
sentence of the presiding judge of said court, committed to jail for
five months, and fined in the sum of five hundred dollars, and directed
to be detained in prison until said fine and costs be paid, for an
alleged contempt of court; and whereas it appears from the proceed-
ings aforesaid, that said contempt consisted in certain newspaper
publications made by said Walter Hickey, on the 10th of June, i&44,
and not alleged to have been in any wise done or committed in the
presence of said court, or in its hearing, and whereas, by the z6th
1. It was held in this case that under treason and impeachment," he had
the constitution of the state of Mis- power to pardon a contempt committed
sissippi conferring upon the governor against a circuit court, and to release
" power to grant reprieves and par- and remit the sentence of fine and im-
dons, and to remit fines in all criminal prisonment inflicted upon the offender,
and penal cases, except in those of
312 Volume 5.
6255. CONTEMPT. 6255.
section of the circuit-court law of this state, page 486, (How. &
Hutch. Digest,) "the said court shall have power to fine and imprison
any person who may be guilty of a contempt of the court, while sit-
ting either in the presence or hearing of such court, provided that
such fine shall not exceed one hundred dollars, and no person for
such contempt shall be imprisoned for a longer period than the term
of the court at which the contempt shall have been committed."
And whereas it now appears that the said Walter Hickey has been
committed for a longer period than the term of the court, fined in a
greater sum than one hundred dollars for an offense not alleged to
have been committed in the presence or hearing of said court, nor
during the sitting of said court, and this at a term subsequent to that
at which the offense was said to have been committed; and whereas
there is, in this proceeding an exercise of judicial power over the
liberty and property of the citizen, not, as I conceive, warranted by
the constitution and laws of the land; and whereas a large number
of citizens have appealed to me to interpose the executive clemency
in this case; now, therefore, I, Albert G. Brown, Governor of the
State of Mississippi, by virtue of the power in me vested, by the loth
section of the fifth article of the constitution, do grant to the said
Walter Hickey, a full and free pardon, and do moreover direct the
sheriff of Warren county forthwith to set him at liberty.
Given under my hand, and attested by the great seal of the state,
at the city of Jackson, November the 13th, i844-
A. G. Brown.
(SEAL) By the Governor,
William Hemingway, Secretary of State.
5. Writ of Prohibition Forbidding- Commitment.
Form No. 6255.
(Precedent in People v. Mayer, 71 Hun (N. Y.) 183. ) l
In the name of the People of the State of New York.
To Alexander U. Mayer, Esq., a commissioner appointed by the
Superior Court of the city of Baltimore-.
Whereas, It doth appear to our Supreme Court of the State of
New York that you, as commissioner appointed by the Superior
Court of the city of Baltimore, are about to issue a process for con-
tempt against one of the citizens of our said State of New York, by
name Daniel S. Toy, for refusal to answer certain interrogatories
proposed by you, as such commissioner, to the said Daniel S. Toy;
and whereas, it further appears that said Daniel S. Toy is a minister
of the gospel and clergyman of the Baptist church; and whereas, it
1. It was held in this case that when mitting the relator to prison for refu-
a hearing upon the merits has been had ing to answer interrogatories calling
upon the return of an order to show for the disclosure of a privileged corn-
cause why a writ of prohibition should munication, and it appears that only a
not issue to prevent a commissioner ap- question of law is involved, it is proper
pointed by a court of another state to issue a peremptory writ instead of an
from oppressively and illegally com- alternative writ.
313 Volume 5.
6255. CONTEMPT. 6255.
further appears to our Supreme Court of the State of New York that
the declarations, if any, were made in the nature of a confession to
the said Daniel S. Toy, as such minister of the gospel under a course of
discipline prescribed by the Baptist church, to which religious body
the said Rev. Daniel S. Toy belongs.
Now, therefore, we command you, Alexander U. Mayer, as such
commissioner, appointed by the Superior Court of the city of Balti-
more, that you do refrain from issuing any commitment for contempt
or from doing any act to compel the said Daniel S. Toy to answer
such interrogatory, or, in any way, interfere with the liberty of said
Daniel S. Toy.
In witness whereof we have hereunto affixed the seal of our
Supreme Court this llth day of February, i893.
(SEAL) J. O.Dykman, J. S. C.
814 Volume 5.
CONTINUANCES AND ADJOURN-
MENTS.
BY CHARLES C. MOORE.
I. NOTICE OF MOTION FOR CONTINUANCE, 316.
II. MOTION FOR CONTINUANCE, 316.
III. AFFIDAVIT FOR CONTINUANCE, 317.
1. For Want of Preparation, 317.
2. For Public Excitement and Prejudice, 319.
3. For Absence of Counsel, 320.
a. In General, 320.
b. Associate Counsel, 321.
c. In Attendance upon Legislature, 323.
(1) By Party, 323.
(2) By Attorney, 324.
(3) By Agent, 326.
4. For Absence of Party, 327.
a. Needed as a Witness, 327.
b. Needed for Assistance and Advice, 328.
6. For Absence of Witness, 331.
a. In General, 331.
b. Precedents, 358.
6. For Absence of Documents, 405.
7. On Account of Another Suit Pending, 406.
8. For Surprise at Trial, 407.
a. By Amendment of Pleadings, 407.
b. By Suppression of Deposition, 410.
c. By Forged Written Evidence, 411.
9. Additional or Amended Affidavit, 412.
IV. CERTIFICATE OF PHYSICIAN, 413.
V. STIPULATION FOR CONTINUANCE, 414.
1. In General, 414.
2. In Justices Court, 414.
VI. COUNTER AFFIDAVITS, 414.
VII. ORDER OF CONTINUANCE, 416.
VIII. ORDER SETTING ASIDE ORDER FOR CONTINUANCE, 417.
IX. ADJOURNMENTS, 418.
i. In General, 418.
9. Directing Clerk to Adjourn, 419.
a. Generally, 419.
b. By Mail, 419.
c. By Telegram, 420.
3. Justice 's Docket Entry, 420.
315 Volume 5.
6256. CONTINUANCES AND 6258.
CROSS-REFERENCES.
See the GENERAL INDEX to this work.
For matters of Procedure and Practice relating to CONTINUANCES,
generally, see 4 ENCYCLOPAEDIA OF PLEADING AND PRACTICE,
p. 822 et seq.
I. NOTICE OF MOTION FOR CONTINUANCE. 1
Form No. 6256.
To Jeremiah Mason, Esq., Attorney for Defendant:
Take notice, that upon an affidavit, of which the within is a copy,
a motion will be made on the first day of the next term of said
court, to be held at the Court-house, in Charlottesville, in said county,
on the twelfth day of April, i898, for a continuance of said cause.
Dated April 1st, iS98.
Oliver Ellsworth, Attorney for Plaintiff.
II. MOTION FOR CONTINUANCE. 2
Form No. 6 2 5 7 . 3
In the District Court in and for Harrison county, Iowa.
John Doe, plaintiff,
against
Richard Roe, defendant.
Comes now the plaintiff (or defendant) in the above entitled cause
and moves the court to postpone and continue the trial of said cause
until the next term of this court (or until Thursday, the first day of
March, A. D. 1888), upon affidavits filed herewith (or attached hereto)
and made a part hereof.
Oliver Ellsworth,
Attorney for Plaintiff (or Defendant).
Form No. 6258.
(Precedent in State v. Maddox, 117 Mo. 670.)
[The State of Missouri K thc ^^ Court of SMby
v tfjs i \ Missouri. April Term,
Morgan Maddox. J )
The defendant, Morgan Maddox, comes and moves the court to
1. Notices of motions, for forms of, tion. Puterb. PI. and Pr. at Com.
generally, consult the title MOTIONS. Law (6th ed.), p. 755. But the applica-
Motions for continuance are usually tion is almost invariably made by oral
made without notice. Estee's PI. and motion, except in the rare instances
F. (ad ed.), p. 240. where a rule of court requires it to be
2. Necessity for Motion. Unless a in writing. The motion is sometimes
cause is continued by consent or by incorporated in the affidavit. See for
operation of law, a party is not en- illustration Forms Nos. 6258, 6283,
titled to a continuance without making 6302, and precedent in note 4, p. 398.
a motion therefor. 4 Encycl. of PI. For formal parts of motions, gener-
and Pr., p. 870. ally, consult the title MOTIONS.
Oral or in Writing. It is said to be 3. Precedent of such a motion may be
the better practice to file a written mo- found in State v. Foster, 79 Iowa 731.
316 Volume 5.
6259.
AD JO URNMENTS.
6259.
grant him a continuance in this cause to the ne.xt term of this court,
and as the grounds for this motion states the following:
First. {Here were set out the facts showing grounds for continuance on
account of the absence of counsel^
Second. {Her ewe re set out facts showing grounds for continuance on
account of the absence of a material witness.) 2
Morgan Maddox.
State of Missouri, }
County of Shelby. \
Morgan Maddox, the above named defendant, being duly sworn, on
his oath states, that the facts stated in the foregoing application for
a continuance are true.
Morgan Maddox.
Subscribed and sworn to before me this September 5, i892.
Prank Dimmitt, Clerk.
III. AFFIDAVIT 3 FOR CONTINUANCE.
1. For Want of Preparation. 4
Form No. 6259.
(Precedent in Howell v. State, 5 Ga. 49.)*
[( Title of court and cause, venue and commencement as in Form No.
1. For forms of affidavits for con-
tinuance for absence of counsel see
infra, Forms Nos. 6261 to 6269.
2. For affidavits of continuance for
absence of witness see infra, Forms
Nos. 6272 to 6298.
3. For the formal parts of affidavits,
generally, consult the title AFFIDAVITS,
vol. i, p. 548.
Necessity for Affidavit. See 4 Encycl.
of PI. and Pr. 873.
Who may Make Affidavit. The affida-
vit is ordinarily made by the applicant,
but may properly be made by an at-
torney, or other person who has the
requisite knowledge. 4 Encycl. of PI.
and Pr. 875.
In Duberly v. Gunning, i Peake N.
P. (ed. 1795), p. 97, the case was con-
tinued on an affidavit by the defendant's
attorney stating that the absent wit-
ness was material and necessary.
In Sullivan v. Magill, I H. Bl. 637,
it was held that the court will not re-
ceive the affidavit of an attorney's
clerk to put off a trial unless it be
stated that the clerk was particularly
acquainted with the circumstances of
the case and had the management of it.
In Hunter v. Kennedy, i Dall. (Pa.)
81, and Jackson v. Mason, i Dall.
(Pa.) 135, continuances were granted
on the affidavits of strangers to the
record, who had, however, an interest
in the suit.
See further, as to proper parties to
make an affidavit, infra, note I, p. 318,
note 2, p. 320, note 3, p. 325, note I,
p. 327, note i, p. 332, note 2, p. 352,
note 2, p. 360, note 3, p. 362, note i, p.
364, note i, p. 371, note i, p. 372, note
* P- 3741 Form No. 6288; precedents in
note i, p. 377; Form No. 6293; note 2,
P- 39i-
Affidavit should be entitled in the
proper cause. Adams Express Co. v.
Reno, 48 Mo. 264; Irroy v. Nathan, 4
E. D. Smith (N. Y.) 68.
4. Want of preparation as a ground for
continuance, see 4 Encycl. of PI. and
Pr. 833 et seq.\ Brooks v. Com., (Ky.
1896) 37 S. W. Rep. 1043.
5. The indictment charged the offense
to have been committed on the twenty-
first day of April, and the indict-
ment was returned three days later.
The defendant was put on trial on
the twenty-fifth day of the same
month. Though other grounds for
continuance were united with that
of want of preparation, the affidavit
made sufficient showing by stating the
facts given in the text. The particularity
exacted in affidavits of this kind might
lead the careful practitioner to expand
the affidavit by asserting the innocence
317
Volume 5.
6259.
CONTINUANCES AND
6259.
that he is the defendant 1 in the above entitled cause,] 2 that he
is not ready for trial because of his close confinement in custody
since the commission of the crime imputed to him, and that he has
not been able to subpoena witnesses or procure testimony material
for his defense; that the bill was returned into court on yesterday,
that he has not been advised sufficiently long as to what offense would
be imputed to him; that he cannot go safely to trial until he can col-
lect and prepare his testimony, which he has not been enabled to do
at the present term of the court 3 * * * 4 that he does not make
this showing for delay, but for the purpose of getting a fair trial
of defendant, and declaring that there
were, in fact, witnesses whom he could
produce to testify in his defense if time
were given, and other circumstances
showing that a continuance would be
of actual service to him. See infra,
note 3, this page; Form No. 6286.
A Precedent to be Shunned. In South-
ern Bank v. Mechanics Sav. Bank, 27
Ga. 253, the affidavit failed to comply
with the requirements set forth in note
3, infra, and is also condemned by 3
Ga. Code (1895), 965, which is merely
declaratory of the general rule, and
provides that " the party making an
application for a continuance must
show that he has used due diligence."
1. Who may Make. The affidavit,
though usually made by the party him-
self, may be made by his counsel when
the latter is cognizant of the facts, and
particularly when the matters set forth
relate to the attorney's own situation or
conduct in respect to the case. Thus
the motion was founded upon the affi-
davit of counsel in Dunlap v. Davis,
10 111. 84; Brotherton v. Brotherton, 41
Iowa 112; Brooks v. Com., (Ky. 1896)
378. W. Rep. 1043; People v. Shea, 147
N. Y. 78.
2. The words in [ ] are not found in
the reported case, but have been added
to make the form complete.
3. That reasonable exertions have been
made for preparation without success,
or that there was some good reason for
not making such exertions must be
shown. Dunlap v. Davis, 10 111. 84;
People v. McGonegal, (Supreme Ct.) 17
N. Y. Supp. 147; Com. v. Mister, 79 Va.
5. It is not sufficient to aver inabili-
ty to take steps toward preparation.
The affidavit should show in what re-
spect the party has not been able to
prepare for trial. Thompson v. State,
24 Ga. 297. And a continuance was
properly denied where the affidavit of
defendant's counsel merely stated that
counsel wanted time, and that it was
not customary to go to trial on an in-
dictment for so grave an offense so soon
after it was found. People v. Shea,
147 N. Y. 78.
An affidavit that defendant's attorney
had not been notified when the case
would be reached until a few hours be-
fore it was called, was insufficient in
not showing that defendant himself
was unaware of the date fixed for the
trial in time to prepare for the same.
May v. State, 38 Neb. 211.
An affidavit was insufficient in not
stating that counsel defending was un-
able by reason of his recent employ-
ment to fairly present defendant's case,
where defendant had been abandoned
by his former counsel a short time be-
fore trial, and had thereupon employed
other counsel. Dacey v. People, 116
111. 555-
In Murphy v. Com., 92 Ky. 485, it
appeared by affidavit of the defendant
that he had been confined in jail since
his arrest, that he was unable to read or
write, that he was entirely without
funds, that the attorney defending him
was a volunteer and a stranger in the
county, and that if he were granted a
continuance defendant could prove
that he was insane when the alleged
crime was committed. It was held
reversible error to overrule defendant's
motion for continuance based on such
affidavit. For similar cases see State
v Hagan, 22 Kan. 490; Newman v.
State, 22 Neb. 356.
In North v. People, 139 111. 81, the
court said, " it has never been regarded
necessary that defendant show the
same degree of promptness and dili-
gence in preparing for trial at the term
at which the indictment is returned as.
at subsequent terms."
4. Here the affidavit proceeded to
state the absence of counsel as a further
ground for continuance. For affidavits
presenting that ground see infra, Forms
Nos. 6261 to 6269.
318
Volume 5.
6260. ADJOURNMENTS. 6263.
* * * i [(Signature and Jurat as in form No. 6284.)]*
2. FOP Public Excitement and Prejudice. 3
Form No. 6260.
( Title, venue and commencement as in Form No. 6288. ) That after
the commission of the alleged homicide there was great public excite-
ment in the minds of the people of Marion county, and such public
excitement continues up to the present time, and such public excite-
ment agitates the public mind to a high degree, and hath great preju-
dice against affiant, and that there is just and reasonable cause to
apprehend that by reason of the excited state and condition of the
public mind a jury obtained at this time might not be free to render
justice to the defendant at this term of court. That there has not
been since the time of the alleged homicide sufficient time for the
public excitement to cool down. The public excitement was so
intense that there was great danger that violence might have been
done to affiant, by reason whereof extra guards had to be employed
for the security of his person from the violence of the public since
affiant has been in custody. That the said excitement in the public
mind is sufficient to intimidate and swerve the jury. 4 That (Here
state special circumstances showing the existence of public excitement and
prejudice)* [Affiant further says that he believes that a fair and
1. The affidavit concluded with a
further allegation of public excitement
and prejudice as a ground for con-
tinuance. For affidavits in support of
a motion for continuance upon that
ground see infra. Form No. 6260.
2. The words in [ ] are not found in
the reported case, but have been added
to make the form complete.
3. Public excitement and prejudice as
a ground for continuance, see4Encycl.
of PI. and Pr. 832, 878.
4. " Sufficient to Intimidate and Swerve
the Jury." That this averment is essen-
tial see State v. Abshire, 47 La. Ann.
542.
5. Particular facts and circumstances
should be alleged from which the court
can deduce the conclusion that public
prejudice actually exists to such a de-
gree that defendant cannot obtain a
fair trial at the present term. See
Hoover v. State, 48 Neb. 184; State v.
Abshire, 47 La. Ann. 542, the latter
case pointing out that an allegation
that " means had been taken improp-
erly to influence the jury" would be
material to the point of prejudice. The
form presented in the text is a part of
the affidavit in Ballard v. State, 31 Fla.
280, in which the court said: " The mere
fact that there is in the record neither
any corroborative evidence of its state-
ments, nor any attempt to show that
the accused was prevented from
getting such evidence by the stress of
circumstances detailed, is sufficient
reason for us to refuse to review the
decision of the circuit judge in refus-
ing a motion for a continuance on this
ground."
The principles controlling such appli-
cations are said to be strictly analogous
to those governing the application for
a change of venue upon the same
ground. Bishop v. State, 9 Ga. 121;
Ballard v. State, 31 Fla. 280. As to
the requisites of an affidavit for a
change of venue, see vol. 4, Form
No. 5560, and 4 Encycl. of PI. and Pr.
399, 431, 432.
Other Forms. In Jones v. State, (Tex.
Crim. App. 1896) 35 S. W. Rep. 975,
one ground of defendant's application
for continuance was: " Because there
exists at the present term of this court
so great a prejudice in the public mind
against him that witnesses knowing
the facts material to his defense are
terrorized and intimidated thereby, and
will not declare such facts to him or to
his attorney, and it would be extremely
dangerous for him to go to trial; and a
fair and impartial trial would be denied
him if he is forced to trial at this term
of the court." The motion was denied,
319
Volume 5.
6261.
CONTINUANCES AND
6261.
impartial trial can be had at the next term of this court. 1 And that
this application is not made for delay, but for the purpose of secur-
ing a fair and impartial trial.] {Signature and jurat as in Form No.
6283.)
3. For Absence of Counsel.
a. In General. 2
Form No. 6261.
(Precedent in Bartel v. Tieman, 55 Ind. 438.)
not because the affidavit was insuffi-
cient, but upon the ground that if the
facts alleged were true the proper
course was to move for a change of
venue. See also Laughlin v. Com., (Ky.
1896) 37 S. W. Rep. 590.
In Howell v. State, 5 Ga. 49, the
statement in the defendant's affidavit
concerning public excitement, etc., was
as follows: " Deponent further states
that he cannot go safely to trial, be-
cause such is the excitement in the
public mind, and so excited is public
feeling at this time against him, as he
has been advised and believes, that he
has more to fear, and does fear, that
he cannot obtain a fair trial." In Bishop
v. State, 9 Ga. 121, the affidavit was
almost exactly the same. In both of
those cases it was held sufficient, but
they must now be pronounced unsafe
precedents to follow anywhere. As to
the present law and practice in Georgia,
see 4 Encycl. of PI. and Pr. 832, note 7.
1. Fair Trial at the Next Term. In
State v. Abshire, 47 La. Ann. 542, the
affidavit was pronounced defective be-
cause it " failed to disclose that a fair
and impartial trial could be had at the
term of court to which it was proposed
to defer it."
2. Continuances for absence of counsel
are not favored, particularly where the
absence is occasioned by other profes-
sional engagements; actual prejudice
resulting should always be shown. 4
Encycl. of PI. and Pr. 839 et seq.,
cited in Adarmek v. Piano Mfg. Co.,
64 Minn. 304; Poppell v. State, 71 Ga.
276; Stringam v. Parker, 159 111. 304;
Whitehall v. Lane, 61 Ind. 93; Geiger
v. Payne, (Iowa, 1896) 69 N. W. Rep.
554; Watkins v. Ahrens, etc., Mfg. Co.,
(Ky. 1897) 38 S. W. Rep. 868; West v.
Hennessey, 63 Minn. 378; State v.
Inks, 135 Mo. 678; People v. Hilde-
brandt, 16 Misc. Rep. (N. Y. County
Ct.) 195; Van Horn v. State, (Wyoming,
1895) 40 Pac. Rep. 964.
There is no prejudice where it appears
that the case was ably tried by asso-
ciate counsel. Reynolds v. Campling,
23 Colo. 105; Marshall v. State, 94 Ga.
589; Johnson v. Dean, 48 La. Ann. 100;
St. Louis, etc., R. Co. v. Holaday, 131
Mo. 440; Weaver v. State, 34 Tex. Crim.
Rep. 282; Ryan v. State, (Tex. Crim.
App. 1896) 35 S. W. Rep. 288; Mixon
v. State, (Tex. Crim. App. 1896) 35 S.
W. Rep. 394. Or where no reason is
shown why other counsel could not be
procured. Condon v. Brockway, 157
111. 90.
Application After Trial Begun. In
Porter v. Triola, 84 111. 325, it was
held that a motion for continuance for
absence of counsel by reason of sick-
ness came too late after trial begun,
the remedy, if any, being by motion
for a new trial.
Who may Make. In Condon v. Brock-
way, 50 111. App. 625, the affidavit was
made by the party and also by the
absent attorney. In St. Louis, etc.,
R. Co. v. Holaday, 131 Mo. 440, it was
made by associate counsel present.
In Johnson v. Dean, 48 La. Ann. 100,
by the absent counsel.
Requisites of Affidavit. The affidavit
should show the reason for counsel's
absence. St. Louis, etc., R. Co. v,
Holaday, 131 Mo. 440. And that his
presence is needed to assist associate
counsel, if there is any. Stringam v,
Parker, 159 111. 304. And set out
what time the absent attorney will be
able to try the case. Condon v. Brock-
way, 50 111. App. 626. And "show
with satisfactory certainty that the ap-
plicant had not ample time, after he
learned that his attorney would be ab-
sent on the day set for the trial * * *
to employ another attorney, and to
inform him fully" of the difficulties
involved in the case. Whitehall v.
Lane, 61 Ind. 93, where the affidavit,
insufficient in this particular, is set
forth in extenso.
320
Volume 5.
6262. ADJOURNMENTS. 6262.
[(7Y//V, venue and commencement as in Form No. 6287.)] 1 that the
cause was set down for trial on the ninth day of this month {June) and
that she was ready for trial on that day; that she had procured the
attendance of a very importance witness, who lived in Cincinnati,
Ohio; that she had some time before employed Henry C. Fox and
John H. Popp, attorneys, to prepare and conduct her defense in said
suit; that they had prepared themselves to defend it, and were familiar
with the facts and questions involved in it, and that she relied upon
them to represent her; that said cause was not called in its order for
trial until the evening of the tenth instant, at which time she was
ready for trial with her attorneys; that the court passed said cause
and called another one, and proceeded to the trial of it, whereupon
her witness from Cincinnati immediately left for his home in that city.
Affiant further says that her attorneys, who were then present, ready
for trial, cannot be present at this trial, at this term, owing to pro-
fessional engagements elsewhere, which engagements were entered
into before the time set for trial of this cause, viz., the ninth instant;
that they informed her of this fact for the first time on the twelfth
instant; that she has not employed other counsel for the reason that
no others were familiar with the facts of her defense, and that after
she was informed by her retained counsel that they could not be at
the trial on this day, the intervening time, being but two days, was
too short to enable other attorneys to familiarize themselves suffi-
ciently with the case to properly try it; and for the further reason
that she is poor, as is also her husband, and unable to pay two sets
of attorneys; that in the complaint she is charged with fraudulently
receiving the titles to lands therein described, with intent to cheat,
hinder and delay the creditors of her husband, all of which charges
are untrue; that all she has for herself and children is involved, and
it is of the greatest importance to her to have her said witness on
the trial. 2 {Signature and jurat as in Form No. 6287.)
b. Associate Counsel.
Form No. 6262.
(Precedent in State v. Maddox, 117 Mo. 670.)*
(Commencing as in Form No. 6291, and continuing down to *.) That
Champ Clark, an attorney-at-law, is one of the counsel for this defend-
ant in this cause and has been such counsel ever since the indictment
in this cause was found, and that said Champ Clark, as such counsel,
is in charge of portions of the work in making the defense in this
cause, which were peculiarly in the charge and knowledge of said
Clark.
1. The words to be supplied in [ "| are further than to declare that it was suffi-
not found in the reported case, but have cient, and that a continuance was
been added to make the form complete, erroneously denied.
2. Here followed a statement de- 3. The merits of so much of the affi-
signed to support the application on davit as is here given were not alluded
the further ground of absence of a wit- to by the court, as the case was decided
ness. The supreme court did not com- on the part of the affidavit set out in
ment upon the merits of the affidavit Form No. 6291.
5 E. of F. P. 21. 321 Volume 5.
6263. CONTINUANCES AND 6263.
That said Clark is a resident of the city of Bowling Green, in Pike
county, Missouri, and is a member of the bar at that place, and has a
large practice as such attorney in the Circuit Court of said Pike
county.
That the regular September term, iS92, of said Pike Circuit court is
begun on this day, to wit, \h& fifth day of September, iS9%.
That the docket of said Circuit Court of Pike county is set so that
there are a great many of the cases in which said Clark is of counsel,
set for trial on every day, beginning with this day and ending on the
fifteenth day of September, iS92.
That said cases in which said Clark is engaged as counsel are
important cases, and by reason of said employment of said Clark in
said cases in said Pike Circuit Court, he, the said C. Clark, cannot be
present at the trial of this cause at the present term of this court, and
that if the defendant is compelled to go to trial without the presence
and aid of said Clark as such counsel, a great and material harm
'vould be done this defendant, and this defendant would be deprived
of the means of making a full and fair defense in this cause. 1 (Signa-
ture and verification as in Form No. 6291. )
Form No. 6263.*
(Title and venue as in Form No. 6284.)
I, Early W. Thrasher, do swear that I am the defendant in the
above entitled cause; that . H. Thrasher, Esq., is my leading
counsel 3 in this case; that I have had more frequent and fuller con-
versations with him concerning this case than with Colonel Billups or
other counsel; that he has entire charge of getting up, preparing
and arranging the evidence in this case; that I cannot safely go to
trial without his services; 4 that I expect his services at the next
1. The affidavit then proceeded to set showing for a continuance as required
out as another ground for continuance by that section, the application is
the absence of a material witness, which nevertheless controlled by section 966
constitutes Form No. 6291, and was duly of the code, and that the court may, in
subscribed and sworn to. the exercise of a sound discretion, re-
2. This affidavit modifies and strength- fuse to continue the case.
ens the precedent found in Thrasher v. It was held a proper exercise of dis-
Anderson, 45 Ga. 540, wherein a new cretion to refuse a continuance on
trial was granted for refusal of a con- account of the absence of leading
tinuance. For other cases, in which counsel where the defendant's affidavit
new trials were properly granted be- merely stated as to the reason for
cause continuances were refused upon counsel's absence that he, the defend-
a proper showing of the absence of ant, "was informed by letter that
leading counsel, see Smith v. Brand, [counsel's] wife was dangerously ill
44 Ga. 588; Bagwell v. State, 56 Ga. and too ill for his attendance on court,"
406. and other competent counsel tried the
Continuances for " illness of counsel or case. Loyd v. State, 45 Ga. 57.
his absence, from providential cause, 3. Leading Counsel. As to who is
where there is but one, or of the lead- considered leading counsel, see Smith
ing counsel where there are more than v. State, 78 Ga. 74; Bagwell v. State,
one," are regulated by section 964 of 56 Ga. 406; Turner v. State, 70 Ga. 774.
the Georgia Code of 1895. 4. He should swear that he cannot
It was held by a majority of the safely go to trial without the absent
court in Thomas v. State, 92 Ga. 8, counsel. Turner v. State, 70 Ga. 774.
that although a party makes a proper
322 Volume 5.
6264. ADJOURNMENTS. 6264.
term; that he is not absent by my consent or procurement, but
from providential cause, namely, an attack of pneumonia, 1 from
which he is now recovering; and that the said B. H. Thrasher is
unable to be present at this term of court by reason of said illness.
This application is not made for delay only. 2 {Signature and jurat
as in Form No. 6284.)
e. In Attendance upon Legislature. 3
(1) BY PARTY.
Form No. 6264.
(Precedent in Harrigan v. Turner, 53 111. App. 292.)
State of Illinois, \ ^ j G & Q M T
Peona County. )
L. R. Turner )
vs. V Debt Appeal.
Michael Harrigan. )
Michael Harrigan makes oath and says that he is the above named
defendant, and that he can not safely proceed to the trial of this
cause at present May term, \W3, of this Circuit Court of Peoria
County, Illinois, for the reason that John M. Niehaus, his attorney,
is at present a member of the upper branch of the legislature of the
General Assembly, now in session at Springfield, Illinois, for the year
of \WS, and that he is now in actual attendance on the same; 4 and
that the attendance of John M. Niehaus in this Circuit Court is neces-
sary to a fair and proper trial of said suit; and that the saidyW///
M. Niehaus was employed by the defendant, Michael Harrigan, prior
to the commencement of the January session of the General Assem-
bly of i WS\ said session was held at Springfield, Illinois.
1. For certificate of a physician see not time to employ or instruct other
infra, Form No. 6305, and annotations, counsel, nor the means to do so. A
showing that it is good practice to refusal to grant a continuance was
fortify an affidavit of sickness by filing there held to be an abuse of discretion,
therewith the certificate of a physician. But statutes often provide for continu-
2. Not Made for Delay. The affidavit ances on account of absence of coun-
must state that the application is not sel in attendance upon the legislature
made for delay only. Burnett v. State, as a member thereof.
87 Ga. 622; Smith v. State, 78 Ga. 74, California. Code Civ. Proc. (1897),
where a defect in that particular was 595.
held fatal. Illinois. Starr & C. Anno. Stat.
3. Absence of counsel in attendance upon (1896), pp. 3041, 3042, pars. 47, 48.
the legislature, even of leading counsel, Indiana. Horner's stat. (1896),
is not deemed a sufficient ground for 4110.
continuance. Sharman v. Morton, 31 Louisiana. Garland's Rev. Code
Ga. 34. But see Patin v. Poydras, 7 (1894), 466.
Martin N. S. (La.) 593, where it ap- Missouri. Burns' Anno. Pr. Code
peared by plaintiff's affidavit that her (1896), 500.
counsel was absent attending to public 4. Showing actual attendance upon the
business as a senator and had her session of the legislature is sufficient
papers in his possession; that she was cause for a continuance. Harrigan v.
not apprised of his absence early Turner, 53 111. App. 292. Consult also
enough to send for the papers which annotations to Form No. 6268, infra.
were necessary in her case, and had
323 Volume 5.
6265. CONTINUANCES AND 6267.
That this application is not made for delay, but that justice maybe
done; that he has a meritorious defense and believes he will be suc-
cessful on a trial of said cause.
Michael Harrigan.
Subscribed and sworn to before me this 3d day of May, A. D. iS93.
James E. Pillsbury, Clerk,
By R. N. McCormick, Deputy.
Form No. 6265.'
{Title of court and cause, and venue as in Form No. 6287.)
Thomas A. Smith, being duly sworn, on his oath says that he is the
plaintiff (or defendant) in the above entitled cause; that John Jones,
of Indianapolis, is his attorney in said cause ; that the said Jones is a
member of the general assembly of the state of Indiana, and that
said general assembly is now in session; and further, that said
Jones was employed in said cause by the affiant as his chief attorney
before the beginning of said session, and before the election of said
Jones to said general assembly, and that said Jones is the only
attorney employed in said cause by the affiant [who is prepared to
try said cause for him]. 2 {Signature and jurat as in form No. 6287.)
Form No. 6266."
{Title of court and cause, and venue as in Forms Nos. 833, 2566.)
John Smith makes oath and says that he is the plaintiff (or defena-
ant) in the above entitled cause; that Samuel Short is an attorney at
law and employed as the leading counsel for the said plaintiff (or
defendant) in said cause ; that said Samuel Short is absent from the
court and employed in the service of the state of Louisiana, as a
member of the general assembly thereof, which is now in session.
{Signature and jurat as in Form No. 832.)
(2) BY ATTORNEY.
Form No. 6267.*
( Title of court and cause, and venue as in Forms Nos. 814, %5S4. )
John Smith, being duly sworn, deposes and says, that he is the
1. Indiana. Horner's Stat. (1896), ever any attorney at law shall be
411, providing that "whenever any employed in the service of the state,
plaintiff or defendant in a civil action, as a member of the general assembly,
or a defendant in a criminal action, his absence from court, unless it be the
shall make affidavit," etc., " and upon supreme court, during the session of
such affidavit move the court for a the general assembly, shall constitute
continuance," the same shall be a peremptory cause for the continuance
granted until three days after the ad- of any case wherein he is employed as
journment of the legislature. leading counsel."
See also annotations to Form No. The code does not expressly require
6268, infra. an affidavit in support of the motion for
2. If there is only one attorney, omit continuance. For construction of simi-
the words in []; if more than one, they lar statutes, and practice thereunder,
are indispensable. see annotations to Forms Nos. 6264,
3. Louisiana. Garland's Rev. Code 6265, 6267,6268, 6269.
(1894), 466, providing that " when- 4. California. Code Civ. Proc.
324 Volume 5.
6268.
AD JO URNMENTS.
6268.
attorney of record for the plaintiff (or defendant) in-the above entitled
cause; that he is actually engaged in attendance upon a session of the
legislature of the state of California as a member thereof; and that he
was employed as attorney of record as aforesaid before the com-
mencement of said session of the legislature. 1 (Signature and iurat
as in Form No. 814.)
Form No. 6 2 6 8 .*
( Title of court and cause, and venue as in Form No. 6285 or Form
No. 6291.)
I, John Smith, do swear that I am the attorney (or solicitor or coun-
sel)* of the plaintiff (or defendant, or other party) in the above en-
titled cause; that I was actually employed 4 in said suit by said party
prior to the commencement of the general assembly of the state of
Illinois, which is now in session 5 [and was prior to and at the date of
said employment and am now duly authorized and admitted to prac-
(1897), 595, not expressly requiring
an affidavit but providing for the post-
ponement of trial. In People v. Gold-
enson, 76 Cal. 343, where the junior
counsel was absent as a member of the
legislature, it appears that an affidavit
was filed by the senior counsel present.
In the same case the court deems it
doubtful if section 595, above men-
tioned, applies to criminal proceedings.
1. In People v. Goldenson, 76 Cal.
343, the court expressed the opinion
that the Code, 595, cited in the pre-
ceding note, authorized a continuance
only for the absence of those who be-
come attorneys of record before the
commencement of the session of the
legislature.
2. Illinois. Starr & C. Anno. Stat.
(1896), p. 3041, par. 47 et seq., applying to
all civil " suits at law or in equity."
It is mandatory upon the court to con-
tinue the cause upon this ground under
the statute, the word " may " being
construed as "shall" or " must." St.
Louis, etc., R. Co. v. Teters, 68 111.
144; Wicker v. Boynton, 83 111. 545;
Ware v. Jerseyville, 158 111. 234; Chi-
cago Public Stock Exch. v. Mc-
Ciaughry, 148 111. 372, affirming 50 111.
App. 358, refusing, however, to disturb
the ruling of the trial court denying the
continuance, it appearing that the error
was harmless.
Counter affidavits are not admissible
for the purpose of contradicting the
affidavit. Chicago Public Stock Exch.
v. McClaughry, 148 111. 379.
A second application on a sufficient
affidavit will not be entertained at the
same term that a first application on
the same grounds has been overruled
on account of a defective affidavit.
Stockley v. Goodwin, 78 111. 127.
Missouri. Burns' Anno. Prac. Code,
500', applying to all civil " suits at
law or in equity."
3. Who may Make. In Illinois and
Missouri the statutes provide for a con-
tinuance if it shall appear by affidavit,
etc., not specifying who must make the
affidavit. In Joiners. Drainage Comrs.,
17 111. App. 607, the affidavit was made
by the absent attorney. In McCloryz/.
Crawley, 59 111. App. 392, it was made
by the defendant, and held insufficient
only for intrinsic defects. In Harrigan
v. Turner, 53 111. App. 292, it was made
by the defendant and held to be in
proper form, and so in Ware v. Jersey-
ville, 158 111. 234. In St. Louis, etc.,
R. Co. v. Teters, 68 111. 144, it was
made by plaintiff's agent, and the prece-
dent approved in this case is given
infra, Form No. 6269.
4. " Actually Employed." An affidavit
alleging employment of counsel implies
actual employment in the language of
the Illinois statute. Harrigan v. Tur-
ner, 53 111. App. 294. In Missouri the
section of the Illinois statute requiring
actual employment prior to the session,
etc., was not adopted, and it is possible
that the affidavit in that jurisdiction
need not contain such statement. By
judicial interpretation, however, in
California, it was thought to be neces-
sary in People v. Goldenson, 76 Cal.
343. See supra, note 4, p. 324.
5. Time of Employment. A motion is
properly overruled if the affidavit fails
to state that the attorney had been
employed in the cause prior to the
commencement of the session of the
325
Volume 5.
6269. CONTINUANCES AND 6269.
tice in the Supreme Court of Illinois} j 1 that I am now 2 a member of
the house of representatives (or senate} of said general assembly,
and in actual attendance 3 on a session of the said general assembly
at the capital of said state; 4 that my attendance in court at the
trial of this suit is necessary to a fair and proper trial of said suit. 5
(Signature and Jurat as in Form No. 6285 or Form No. 6291.} 6
(3) BY AGENT.
Form No. 6269.
(Precedent in St. Louis, etc., R. Co. v. Teters, 68 111. 144.)'
[(Title of court and cause, and venue as in Form No. 6285. )] 8
A. L. Gardiner being first duly sworn says that he is the agent of
the plaintiff; that said plaintiff cannot safely proceed to the trial of
said cause 9 at this term of court on account of the absence of
Thomas S. Casey, who is the principal or senior counsel in said cause;
that said Thomas S. Casey is a member of the senate, one of the
houses of the general assembly of the state of Illinois, and now in
actual attendance upon a session of the said general assembly at the
capital of said state; that said attorney was employed by plaintiff in
said cause before the election of said attorney to the office aforesaid,
and before the present session thereof was begun, and before the
present term of this court began, and further saith not.
A. L. Gardiner, Agent.
[(Jurat as in Form No. 6285.)]*
legislature. Stockley v. Goodwin, 78 intelligently, or it should state in the
111.127. language of the statute that "the at-
1. Admission to practice in the supreme tendance of counsel is necessary to a
court is a requisite of the affidavit un- fair and proper trial." McClory v.
der the Illinois statute. Starr & C. Crawley, 59 111. App. 392.
Anno. Stat. (1896), p. 3042, par. 48. An affidavit stating that the presence
This, however, is not mentioned in the of the absent attorney is " necessary to
Missouri statute, and for that reason a trial of the cause" is a fatal departure
the words in [ ] may be omitted in the from the statute. Williams v. Baker,
latter state. 67111.238. And so is an affidavit stating
2. Affidavit should be made during, not that the party "cannot safely proceed
before, the session of the legislature un- to the trial" in the absence of the
der both the Illinois and Missouri stat- counsel. McClory v. Crawley, 59 111.
utes. Joiner v. Drainage Comrs., 17 App. 392. But compare with this case
111. App. 607. the precedent in Form No. 6269, and
3. Actual attendance upon the session infra, note 9, this page.
must be shown in the affidavit, and it 6. In Illinois the affidavit may be
is not sufficient to state merely that verified before the clerk of the court,
counsel intends presently to be in at- Harrigan v. Turner, 53 111. App. 294.
tendance. Joiner v. Drainage Comrs., 7. It was held to be reversible error to
17 111. App. 607. overrule a motion for continuance upon
4. See supra, note 5, p. 325. this affidavit.
5. That the presence of counsel is neces- 8. The words in [ ] are not found in
sary need not be stated; a general state the reported case, but have been added
ment in the language of the statute is to make the form complete. Consult
sufficient. Wicker v. Boynton, 83 111. also annotations to Form No. 6268,
545. But the affidavit should either supra.
state facts as to the character of the 9. "Cannot safely proceed," etc., is not
suit, so as to enable the court to judge in the words of the statute which is
326 Volume 5.
6270.
AD JO URNMENTS.
6270.
4. FOP Absence of Party. 1
a. Needed as a Witness. 9
Form No. 6270.
(Precedent in Welcome v. Boswell, 54 Ind. 298.)*
quoted in the annotation to Form No.
6268, supra, together with cases showing
the peril of paraphrasing the statute.
In this case, however, the circumstance
that the absent attorney was stated to
be " the principal or senior counsel "
may have prompted the court to de-
clare that "the affidavit * * * states
* * * that the presence of such attor-
ney was necessary to a full, fair and
proper trial of the case."
1. Absence of party as a ground for
continuance, see 4 Encycl. of PI. and
Pr. 834 et seg., relating to continu-
ances on the ground of the absence of
a party, coparty, or adverse party, and
the following notes to this form and
notes to Form No. 6271, infra.
Who may Make. The affidavit was
made by the party himself, in Pate v.
Tait, 72 Ind. 450; McClurg v. Ingle-
heart, (Ky. 1895) 33 S. W.'Rep. 81;
Clark z>. Carey, 41 Neb. 780; bycounsel
in Simpson 7'. Simpson, (Cal. 1895) 41
Pac. Rep. 804; McBride v Stradley,
103 Ind. 465; Post v. Cecil, n Ind.
App. 362; Hefling v. Van Zandt, 162
111. 162; Hodges v. Nash, 141 111. 392;
Beard v. Mackey, 51 Kan. 131; West v.
Hennessey, 63 Minn. 378; by the agent
of the party, in Sanford v. Cloud, 17 Fla.
532; by the secretary of the defendant
corporation, in Cerealine Mfg. Co. v.
Bickford, 129 Ind. 236; Fisse v. Katzen-
tine, 93 Ind. 490; by the party, his
physician and his counsel in Jaffe v,
Lilienthal, 101 Cal. 175.
2. Statement of Proposed Testimony,
Defense, etc. Where the presence of
the party is not sought merely as a
witness, but for aid and advice, etc., it
is not necessary to state or allude to the
proposed testimony by him. Jaffe v.
Lilienthal, 101 Cal. 175. But where his
presence is desired as a witness the
affidavit should conform to the require-
ments of affidavits in the case of absent
witnesses, for which see infra, Forms
Nos. 6272 to 6298, so that the affidavit
must set forth the facts expected to be
proved, and their materiality. Hodges
v. Nash, 141 111. 391; Hefling v. Van
Zandt, 162 111. 162; Fisse v. Katzen-
tine, 93 Ind. 490; McGehee v. Min-
ter, (Tex. Civ. App. 1894) 25 S. W. Rep.
718; Sanford v. Cloud, 17 Fla. 532,
where the opinion sets forth verbatim
the affidavit upon which it was held
that a continuance was rightly refused.
Diligence used to procure the party's
presence or the testimony must be
shown. Hefling v. Van Zandt, 162 111.
162. And a higher degree of diligence
must be shown than when the absent
witness is a stranger to the suit. Man-
tonya v. Huerter, 35 111. App. 27. But
it need not show that he has been
served with a subpoena. Douglass v.
Blakemore, 12 Heisk. (Tenn.) 565.
Inability to prove the same facts by
other witnesses must be shown.
Hodges v. Nash, 141 111. 392. Consult
also note 2, p. 343, infra,
Cause of party's absence must be
shown. Hazen v. Pierson, 83 111. 241;
Davis v. Foreman, (Tex. 1892) 20 S. W.
Rep. 52. " Definitely and clearly." Mc-
Bride v. Stradley, 103 Ind. 467, holding
" sickness in his family " not a sufficient
averment. Steele v. Com., 3 Dana
(Ky.) 84, holding " circumstances be-
yond his control" insufficient. And if
ill, the nature of the party's illness
should be stated. Pate v. Tate, 72 Ind.
452. See also Solomon v. State, 71
Miss. 568.
Reasonable expectation of securing
party's presence or testimony at the term
to which it is sought to defer the trial
must be shown. Mantonya v. Huer-
ter, 35 111. App. 27. Consult also note
8, p. 345, infra.
Admission to Obviate Continuance.
See Elliott v. Field, 21 Colo. 378;
Kitchens v. Hutchins, 44 Ga. 620; Pate
v. Tait, 72 Ind. 450; Pruyn v. Gibbons,
24 La. Ann. 231.
3. "When the application is made
on account of the absence of a witness
merely, certain formal and necessary
facts must be shown by the affidavit to
entitle the party to a continuance (cit-
ing statute, now Horner's Stat. (1896),
410). * * * In other cases good cause
only need be shown by the affidavit or
otherwise (citing statute, now Horner's
Stat. (1896), 411). In the case before
us the applicant was more than a wit-
ness in his relations to the action. He
was also a defendant, and the only de-
327
Volume 5.
6271. CONTINUANCES AND 6271.
[(Title of court and cause, and venue as in Form No. &2.97.)] 1 Thomas
S. Cogley, being duly sworn, on his oath says, that he is attorney for
the defendant, Frank D. Welcome, \n the above entitled cause, and
that he makes this affidavit for and on his behalf; that said
Welcome resides at Port Huron in the state of Michigan-, that he is
detained at his home by the dangerous illness of his wife, as affiant
is informed and believes; that affiant was not employed in the de-
fense in time to get the deposition of said defendant, and affiant has
been informed and he believes that the defendant has been anxiously
watching for a favorable change in the illness of his wife, so he
could safely leave her to attend the trial of this cause; that he,
affiant, believes the defendant has a meritorious defense to the above
action; that he expects to prove by him that he is the owner of the
steam-tug " Grace Do nner " ; that he employed the plaintiff to take
charge of said vessel as master; that the services rendered by the
plaintiff for the defendant were as master of said steamer and in no
other capacity; that the plaintiff as such master received all the
money and earnings of said vessel and applied them to the payment
of himself for his services as master; that said plaintiff not only paid
himself for his said services out of the moneys of said steamer and
of the defendant, but that he appropriated large sums of money
earned by said steamer and belonging to the defendant, in excess of
the indebtedness of defendant to plaintiff two or three hundred &o\\a.rs,
as affiant is informed and believes; that affiant believes the defend-
ant will testify to the above facts, and that he believes they are true;
that he believes the testimony of said defendant can be procured by
the next term of this court; that he, affiant, knows of no other wit-
ness by whom he can prove the facts above set forth, whose testi-
mony can be as readily procured. [(Signature and jurat as in Form
No. 6287. )]*
b. Needed for Assistance and Advice.*
Form No. 6271.
( Title of court and cause, and venue as in Form No. 6287. ) John Smith,
being duly sworn, deposes and says that he is the sole attorney and
fendant in the cause. The rule, there- eludes every conclusion that the appli-
fore, governing the application for a cation was made for delay merely,
continuance on account of the absence * * * We think that in the exercise of
of an ordinary witness was not, in our a proper judicial discretion the court
opinion, strictly applicable to him in below ought to have continued the
the motion made in his behalf for the cause, and that consequently it erred
continuance of this cause. His appli- in refusing to do so." Welcome v.
cation, we think, was not within any Boswell, 54 Ind. 298.
strict statutory rule, but was addressed For another case of reversible error
to the sound legal discretion of the in refusing a continuance because of
court. The affidavit shows what we the absence of a party on account of
consider a reasonable excuse for the his illness see Douglass v. Blakemore,
absence of the appellant [defendant] 12 Heisk. (Tenn.) 564.
when the motion for a continuance was 1. The words to be supplied in [ ]
entered. It also shows the materiality are not found in the reported case,
and importance of the proposed testi- 2. Absence of Party Needed for Assist-
mony of the appellant to the issues in ance and Advice. "It is unquestion-
the cause. By its terms it fairly ex- ably an important privilege of the party
328 Volume 5.
6271.
AD JO URNMENTS.
6271.
counsel for the defendant in the above entitled cause and that he can-
not safely go to trial without the presence of his client, who is now
absent in Europe. The plaintiff's action is brought to recover dam-
ages for an alleged breach of warranty in a contract of sale by
the defendant to the plaintiff of/our automatic machines for turning
the heads of carriage bolts.
to be present at the trial of his cause,
which should not be denied on applica-
tion made, unless for weighty reasons."
Elliott v. Field, 21 Colo. 378, holding
that a continuance was properly
granted; Jaffe v. Lilienthal, 101 Cal.
!75> granting a new trial for refusal of
continuance; Pate v. Tait, 72 Ind. 452;
Beard v. Mackey, 51 Kan. 133. See
also annotations to Form No. 6270,
supra.
That a party, especially a sole party,
stands in a different attitude from an
ordinary witness in respect of his ap-
plication for a continuance was affirmed
in Post v. Cecil, n Ind. App. 364 (and
conceded by the dissenting opinion
therein), granting a new trial for refusal
of a continuance; citing Welcome v.
Boswell, 54 Ind. 297, which furnished
the precedent for Form No. 6270, supra.
But his voluntary absence by reason of
prior engagements is not a ground for
continuance. West v. Hennessey, 63
Minn. 378.
Moreover, the presumption is in fa-
vor of the action of the court, and the
refusal of a continuance will not be
ground for a new trial unless it is
affirmatively shown to have been an
abuse of discretion. Bowling v. What-
ley, 53 Ga. 24; Harris v. Rose, 26 111.
App. 237; Fisse v. Katzentine, 93 Ind.
490; Pate 7-. Tait, 72 Ind. 452; Beard v.
Mackey, 51 Kan. 131; McClurg v. In-
gleheart, (Ky. 1895)33 S. W. Rep. 81;
Labouisse v. Orleans Cotton Rope,
etc., Co., 43 La. Ann. 582; Owens v.
Tinsley, 21 Mo. 423; Solomon v. State,
71 Miss. 568. Nor where the error, if-
any, appears to have been harmless.
Simpson v. Simpson, (Cal. 1895)41 Pac.
Rep. 804; Bowling v. Whatley, 53 Ga.
24; Hazen v. Pierson, 83 111. 241. See
also State v. Rogers, 56 Kan. 362.
Necessity for Motion and Affidavit.
In Montgomery v. Wilson, 58 Ind. 591,
the record set forth in the bill of ex-
ceptions recited that " Now come the
parties by their attorneys, * * * and
said cause being called for trial, the
said [attorney] on behalf of the defend-
ant objected to going into the trial at
the present hour of the day, on account
of the absence of his client, who was
old and infirm in health, and unable to
attend court"; but the court proceeded
to trial and judgment. In affirming
the judgment, it was said: "There is
no substantial fact here shown why the
court should have delayed the trial
no affidavit fora continuance, no motion
for a continuance, only the objection of
the attorney," etc.
That the party's presence is essential
"must be shown, when the case is
called for trial, by an affidavit setting
forth the special circumstances which
sustain and justify the application."
Cowperthwaite v. Miller, 2 Phila. (Pa.)
219.
Time to Prepare Application. Refusal
to grant counsel time to prepare and
present a formal application in writing
for a continuance on the ground of the
absence of his client, is reversible error
where the record fails to show any rea-
son for denial of the privilege. Mayton
v. Guild, (Tex. Civ. App. 1894) 29 S.
W. Rep. 218.
Application After Trial Begun. The
application is made too late after the
jury are impaneled and the trial has
begun. Leavitt v. Kennicott, 54 111.
App. 633. See also Cowperthwaite v.
Miller, 2 Phila. (Pa.) 219.
Requisites of Affidavit. The affidavit
must clearly show that the presence of
the absent party is necessary. National
Exch. Bank v. Walker, 80 Ga. 281;
Cowperthwaite v. Miller, 2 Phila. (Pa.)
219. See also Telford v. Brinkerhoff,
45 111. App. 588. And that he is pos-
sessed of knowledge not shared by his
counsel. Beard v. Mackey, 51 Kan.
133-
Counter-affidavits or Testimony.
Whatever may be the result of the con-
flicting authorities as to the admissi-
bility of counter-affidavits to resist an
application for continuance on the
ground of the absence of a witness (see
annotations to Form No. 6308), it seems
to be wholly within the discretion of
the court to receive counter-affidavits
or testimony where a continuance is
asked for the absence of a party to the
suit whose presence is not desired
329
Volume 5.
6271. CONTINUANCES AND 6271.
The affiant says that to the best of his information and belief the
defendant's defense is 1 that the machines sold by him to the plaintiff
were warranted only to turn bolts either of Norway iron or of iron as
soft as Norway iron, and that plaintiff used the machines for turning
bolts made of a certain iron called "charter oak" which is much
harder than Norway iron, thus subjecting the machines to a greater
strain than they were warranted to sustain and necessitating constant
repairs, which were made by ignorant and unskilled mechanics.
The affiant says that the defendant is a skilled machinist and
inventor of automatic machinery and has a thorough knowledge of
the various grades and brands of iron and steel; that he has exclu-
sive knowledge of the details of the defense, and is the only person
who knows the names and whereabouts of the expert witnesses neces-
sary to be called on his behalf; that his peculiar knowledge, informa-
tion and technical skill render it indispensable to a proper presenta-
tion of his side of the case that he should be personally present in
order to give his aid and advice as to the conduct and management
of the trial and the examination and cross-examination of witnesses
upon the technical details of the case.
Affiant says that the facts of the defendant's case were communi-
cated by the defendant to his attorney, George Jones, si Indianapolis,
who with the defendant's assistance was prepared and expected to
try the case at the time when it was set down for trial, but the said
Jones died three weeks ago and the affiant, who was thereupon for
the first time employed in the case by the defendant's agent, has
been unable to get important papers and memoranda relating to the
case which were in the possession of the said Jones, although as soon
as employed he wrote and afterward telegraphed to said Jones's son
and clerk to forward to him all such papers as soon as possible.
The absence of the defendant is because of the following facts:
{Here state the reasons for the defendant's absence and his efforts to be
present in time for the
merely as a witness. McClurg v. In- importance of the defendant's presence
gleheart, (Ky. 1895)33 S. W. Rep. 80, but an insufficient showing of diligence
where a physician was allowed to testify to secure his attendance. Hefling v.
that the defendant was not physically Van Zandt, 162 111. 162, where the
unable to be present as stated in de- affidavit was insufficient on the same
fendant's affidavit for a continuance, point. Clark v. Carey, 41 Neb. 780,
See also Bowling v. Whatley, 53 Ga. where the defendant's good faith was
24; McElveen Commission Co. v. Jack- doubtful. Jaffe v. Lilienthal, 101 Cal.
son, 94 Ga. 549. 175, where the affidavit was held suf-
1. Good Cause of Action or Defense. In ficient in every particular and a new
Fisse v. Katzentine, 93 Ind. 494, the trial was granted for refusal to allow a
court held the defendant's affidavit continuance.
insufficient, because, among other In Pate v. Tait, 72 Ind. 450, the de-
things, it did not show any defense to fendant's affidavit, after stating what
the action, citing Montgomery v. Wil- his testimony would be, and the fact of
son, 58 Ind. 591. See also Beard v. his sickness and inability to attend
Mackey, 51 Kan. 133; Telford v. Brink- court, his residence in the county, and
erhoff, 45 111. App. 588. other formal matters, continued as fol-
2. See Cerealine Mfg. Co. v. Bick- lows: "And he further says that his
ford, 129 Ind. 236, containing copious presence at the trial of said cause is
extracts from the affidavit, which was necessary to the proper defense thereof;
held to make a sufficient showing of the that it is necessary to his proper defense
330 Volume 5.
6272.
AD JO URNMENTS.
6272.
Affiant further says that he is thoroughly satisfied and believes
that said defendant has not absented himself for the purpose of delay;
that the affiant expects and fully believes that said defendant will be
present at the next term of this court, and that said defendant will
then be able to and will take charge of and conduct said case, and
be present at the trial to aid and assist in the defense. (Signature
and jurat as in Form No. 6287.)
5. FOP Absence of Witness. 1
a. In General.
Form No. 6272.
[The State of Alabama, } In the Circuit Court.
Dale, County. f October Term, i807.
John Doe, plaintiff, )
against
Richard Roe, defendant. )
The State of Alabama,
County of Dale.
Before me, Calvin Clark, clerk of the Circuit Court in and for the
ss.
that he be personally present at said
trial in order that he may advise and
confer with his counsel during the prog-
ress of said trial, and that he desires
to be present at said trial, and would
be present now but for his inability to
be there on account of said sickness."
It was held that there was no error
in refusing a continuance. " There was
nothing in the affidavit," said the court,
"to show when, if ever, the defendant
would or expected to be able to be in
attendance. The nature of the sickness
was not shown, nor the age and general
condition of health of the defendant.
For aught that appears the court may
have had reason to believe that the de-
fendant would never be able to attend
the trial. In fact the defendant died
thereafter," etc., and "if a new trial
were granted * * * he could not at-
tend it."
1. For provisions relating to continu-
ances on account of absent witnesses
in the various jurisdictions consult the
following:
Alabama. Circuit and Inferior Ct.
Rules, No. 16 (Civ. Code (1886), p.
808); Chancery Rules Nos. 71, 72 (Civ.
Code (1886), p. 824).
Arizona. Rev. Stat. (1887), 752;
Pen. Code (1887), 1606.
Arkansas. Sand. & H. Dig. (1894),
2157, 2158, 5797.
California. Code Civ. Proc. (1897),
595; Pen. Code (1897), 1052.
Colorado. Mills' Anno. Code (1896),
177; Mills' Anno. Stat. (1891), 2113.
Connecticut. Gen. Rules of Prac.,
No. VIII, 2. See also infra, Form
No. 6273.
District of Columbia. Comp. Laws
(1894), c. LV, 120.
Florida. See Harrell v. Durrance, 9
Fla. 500; Sanford v. Cloud, 17 Fla. 543;
Gladden v. State, 12 Fla. 562; Green v.
King, 17 Fla. 457. See also infra, Form
No. 6283.
Georgia. 2 Code (1895), 5129; 3
Code (1895), 962. See also infra, Form
No. 6284.
Idaho. Rev. Stat. (1887), 4372,
7795; Territory v. Guthrie, 2 Idaho
403-
Illinois. Starr & C. Anno. Stat.
(1896), p. 3036, par. 43 (Prac. Act, c.
no, 43). See also infra, Forms Nos.
6285, 6286.
Indiana. Homer's Stat. (1896),
410, 1781. See also infra, Forms Nos.
6287, 6288.
Iowa. Code (1897), 5370. See also
infra, Forms Nos. 6289, 6290.
Kansas. Gen. Stat. (1897), c. 95,
329-
Kentucky. Bullitt's Civ. Code '1895),
315; Bullitt's Crim. Code(i8o.5), 189.
See also Simms v. Alcorn, I Bibb (Ky.)
348; Carrz/. Marshall, i Bibb (Ky.) 363.
See also precedent infra, note 3, p. 358.
Louisiana. Garland's Rev. Code
(1894), 464 et seq. The motion must
331
Volume 5.
6272.
CONTINUANCES AND
6272.
county aforesaid, personally appeared John Doe (or Richard
be supported by affidavit. Winchester
v. Rightor, 12 La. 256; State v. Roun-
tree, 32 La. Ann. 1144; Thompson v.
Mississippi M. & F. Ins. Co., 2 La. 234;
Roby v. Brown, 14 La. 247. Contra,
where the motion for postponement is
only from evening to the following
morning in order to enable a witness
summoned and in town to get in con-
dition to testify. Leckie v. Crane, 12
La. 432.
Maine. Supreme Judicial Ct. Rules
(1896), No. XV.
Maryland. Pub. Gen. Laws (1888),
art. 75, 57 et seq.
Massachusetts. Supreme Ct. Rules
(Com. Law), No. 34.
Michigan. Circuit Ct. Rules, No.
22; Chancery Rules, No. 15. See also
infra. Form No. 6275.
Minnesota. Stat. (1894), 5366,
7321.
Mississippi. Anno. Code (1892), 723.
Missouri. Burns' Anno. Pr. Code
(1896), 497 etseq.; Rev. Stat. (1889),
4181 et seq. See also infra, Form No.
6291.
Montana. Code Civ. Proc. (1895),
1039; Pen. Code (1895), 2010 et seq.
See also infra, Form No. 6292.
Nebraska. Seein/ra, Form No. 6293,
and annotations thereto.
Nevada. Gen. Stat. (1885), 3182,
4198. See also precedent infra, note on
P- 359-
New Hampshire. Supreme Ct.
Rules, No. 30.
New Jersey. See infra, Form No.
6276, and annotations thereto.
New Mexico. Comp. Laws (1884),
2049 ef Se 1-
New York. See infra, Form No.
6277, and annotations thereto.
North Carolina. Code Civ. Proc.
(1891), 401 et seq.
North Dakota. District Ct. Rules,
No. 32 (3 N. Dak. xxxi); Rev. Codes
(1895), 8141. See also infra, Form
No. 6278.
Ohio. Supreme Ct. Rules, No. 23;
Ct. Com. PI. Rules (Cuyahoga Co.),
Nos. iga, 2Oa.
Oklahoma. Stat. (1893), 4207,
5162.
Oregon. Hill's Anno. Laws (1892),
179, 1344.
Pennsylvania. See infra, Form No.
6277, and annotations thereto.
Rhode Island. Rules of Prac., No. 16
et seq. (15 R. I. 634 et seq.). See also
infra, Form No. 6279.
South Carolina. Circuit Ct. Rules,
No. 27. See also infra, Form No. 6280.
South Dakota. Circuit Ct. Rules (6th
Jud. Cir.), No. 29. See also infra, Form
No. 6294.
Tennessee. Code (1896), 4662.
Texas. Rev. Stat. (1895), art. 1277
et seq. See also infra. Forms Nos. 6295
to 6298, and notes thereto.
Utah. Comp. Laws (1888), 3353,
5003.
Vermont. Supreme Ct. Rules, No. 9.
Virginia. See precedent infra, note
3> P- 358-9, and authorities there cited.
See also infra, Form No. 6281.
Washington. 2 Hill's Anno. Stat.
(1891), 338, 1296.
West Virginia. See Wilson v.
Wheeling, 19 W. Va. 323; Dimmey v.
Wheeling, etc., R. Co., 27 W. Va. 32.
Wisconsin. Circuit Ct. Rules, No.
20 (Sanb. & B. Anno. Stat., 2845,
note). See also infra, Form No. 6282.
Wyoming. Rev. Stat. (1887), 3397
et seq.
Federal Courts. An affidavit for con-
tinuance in a civil case should conform
in its substantive allegations to the
practice in the courts of record of the
state in which the federal court is held
(U. S. Rev. 'Stat., 914), except,
however, that the sufficiency of the
averment of diligence to obtain the
testimony of the witness is to be tested
by the laws of the United States rather
than by the practice in the state courts.
Texas, etc., R. Co. v. Nelson, 50 Fed.
Rep. 814, referring as to diligence to
the U. S. Rev. Stat., 876, 877.
1. Who may Make Affidavit. See list
of statutes, etc., cited supra, note i,
p. 331, note 3, p. 317.
Arizona. Rev. Stat. (1883), 3.
Arkansas. In Turner v. Eustis, 8
Ark. 119, the affidavit was made by the
party's attorney, and not criticised in
that particular, although held defective
on other grounds.
California. In People v. Jenkins, 56
Cal. 5, the affidavit was made on behalf
of the defendant by his attorney, and
under the circumstances it was held
that the motion for continuance was
properly overruled. The court said:
"An attorney cannot, in the nature
of things, be supposed to have cogni-
zance of the witnesses to an alleged
criminal transaction or of the facts
which they can prove in relation to it,
except so far as he may have been in-
formed of one or the other by his client.
332
Volume 5.
6272.
A DJO URNMENTS.
6272.
who being duly sworn deposes and says: 1 ]. 2
Upon such a subject affidavits, when re-
quired, should be made by the defendant
himself or some one who has direct
knowledge of the facts."
Colorado. In Glenn v. Brush, 3
Colo. 31, affidavit was made by party's
attorney, but discussed and overruled
on its merits.
Florida. Consult Form No. 6283
infra, and notes thereto.
Georgia. Consult Form No. 6284
infra, and notes thereto.
Iowa. "Must be founded on the
affidavit of the party, his agent or at-
torney." Miller's Anno. Code (1890),
2750. In Widner v. Hunt, 4 Iowa
357, where the refusal of a continuance
was sustained, the court said: " The
affidavit is made by the plaintiff's at-
torney, who states that he had once
before tried the cause, and is as
well acquainted with the facts as
the plaintiff himself. He deposes
that he was not advised of the
inability of the witness to be in at-
tendance at that term of the court until
so informed by the sheriff on the pre-
vious day. No reason is given why
this affidavit was not made by the
plaintiff himself. In the absence of the
party there is no good re.ason why it
may not be made by the attorney, if
the interest of his client requires. It is
not shown in this case, however, that
the client was not present and able to
make the necessary affidavit himself.
It is not competent for the attorney to
swear to facts which are solely within
the knowledge of his client. The sec-
ond affidavit does not allege that the
fact of the inability of the witness to at-
tend the court was not known to the
plaintiff before the term and in time
to have her testimony taken by depo-
sition."
Kansas. Should generally be made
by the party asking the continuance.
Baker v. Knickerbocker, 25 Kan. 288.
When made by some other person, the
reason therefor should generally in
some manner be shown, as that the
applicant was absent, or that the per-
son making the affidavit was better
acquainted with the facts stated therein.
Clouston v. Gray, 48 Kan. 34.
Kentucky. May be made by any per-
son professing to be informed as to the
facts which the absent witness will
state. Hardesty v. Com.. 88 Ky. 537,
holding that the act of May 15, 1886
(appended to Bullitt's Crim. Code
(1889), 189) is not intended to confine
the right to make the affidavit to the
defendant alone. In the case above
cited, the affidavit made by a stranger
to the record stated that the party on
whose behalf it was jnade was insane.
Louisiana. Ordinarily, it is neces-
sary that the affidavit shall be made
by the party himself and not by his
attorney. Lizardi v. Arthur, 16 La.
579; Beatty v. Tete, 9 La. Ann. 129.
See also Brander v. Flint, 10 La. 391.
But in Benne v. Tourne, 2 La. 462, the
court said : " If the case be such a one
as presents a fair apology for the party
not being present himself in court, we
think the person who represents him
may make the necessary affidavits."
See also Lizardi v. Arthur, 16 La. 579;
State v. Boitreaux, 31 La. Ann. 188.
Nebraska. See infra, note 4, p. 394.
New Mexico. In Faulkner v. Terri-
tory, 6 N. Mex. 464, the affidavit was
made by the party's attorney.
Washington. Should be made by
attorney, not by the party, where the
former is alone cognizant of the neces-
sary facts. State v. Wilson, 9 Wash.
218, where the affidavit of the defend-
ant stated that his counsel had " made
unceasing efforts to ascertain the
whereabouts of said witness." The
defendant had been in jail, and his
statement was merely hearsay.
1. Commencement of affidavit when
running in the first person may be as
followsr "\,John Doe (or Richard
Roe), being duly sworn on oath
say," or words of like effect. See the
title AFFIDAVITS, vol. i, p. 556 et seq.
2. For formal parts of affidavits, gen-
erally, consult the title AFFIDAVITS, vol.
i, p. 548^^7.
Variance between Affidavits and Plea.
In Golden v. State, 19 Ark. 590, defend-
ant was indicted by the name of
" Harrison Golden," and in this name
pleaded not guilty. He filed a motion
and affidavit for continuance, the mo-
tion being embodied in an affidavit and
consisting of one document, which was
entitled and commenced as follows:
" State v. Harrison Golden. And the
said defendant, who is indicted by the
name of Harrison Golden, in his proper
person and by his proper name of
Alexander Golden, comes and, being
duly sworn according to law, says,"
etc. This motion and affidavit was
signed "Alexander Golden." It was
held by a divided court that the paper
333
Volume 5.
6272.
CONTINUANCES AND
6272.
I. That affiant is (or / ani) the plaintiff (or defendant) in the above
entitled cause.
II. That affiant (or 7) cannot safely proceed to (or go into) the
trial of this cause at t;he present term of this court on account of
the absence (or for the want of the testimony) of George Jones , x who (is
was properly stricken from the file be-
cause it was not filed in the name by
which defendant was indicted and in
which he had pleaded.
1. Cannot Safely Proceed to Trial.
The court must be satisfied that the
party cannot safely proceed to trial
without the testimony of the absent
witness. Danielson v. Gude, n Colo.
87. And it should be alleged that the
party cannot safely go to trial for want
of the testimony of an absent witness.
Dimmey v. Wheeling, etc., R. Co., 27
W. Va. 32; Wilson v. Wheeling, ig W.
Va. 323; Wilson v. Kochnlein, I W. Va.
145. Consult also list of statutes, etc.,
cited supra, note I, p. 331.
Name and Residence of Absent Witness
Generally. In Smith v. Dobson, 2
D. & R. 420, 16 E. C. L. 100, and
Brown v. Murray, 4 D. & R. 830, note
a., 16 E. C. L. 224, it was held that
in a first application the name of the
witness need not be stated; but in
Smith v. Barker, 3 Day (Conn.) 280, a
case in the United States circuit court,
it was said that " the name of the wit-
ness must always be disclosed * * *
unless there are circumstances to show
that the party, without any fault of
his, was unable to learn his name."
In many of the states it is expressly
required by statute, or rule of court,
that the name and residence of the
witness, if known, shall be stated, and
in the absence of such provisions this
is believed to be the universal prac-
tice. See list of statutes, etc., cited
supra, note i, p. 331, and the cases
cited infra, this note.
Arkansas. The statute does not
expressly require it, but the averment
is doubtless essential in order to iden-
tify the witness in connection with
\averments of diligence used to obtain
his testimony. See Jackson v. State,
54 Ark. 243.
California. Should state the name
of the witness. Carey v. Philadelphia,
etc., Petroleum Co., 33 Cal. 694.
Colorado. The code does not ex-
pressly require it, but the affidavit is
regarded as defective without the aver-
ment. Michael z/. Mills, 22 Colo. 439;
Dawson v. Coston, 18 Colo. 493; un-
less it is shown that sufficient dili-
gence has been used to ascertain the
name and residence of the witness.
Wilson v. People, 3 Colo. 325; Outcalt
v. Johnston, 9 Colo. App. 519, holding
that a mere statement that efforts had
been used to ascertain the whereabouts
of the witness, but not stating in what
the efforts consisted, was not sufficient.
See also Litchfield v. Daniels, I Colo.
268.
Idaho. As to the residence of the
witness, see Herron v. Jury, r Idaho
164.
Kansas. If it appear that the wit-
nesses's whereabouts are unknown, the
affidavit must state specific acts of
diligence in making inquiries, and
when and of whom the inquiries were
made. Clouston v. Gray, 48 Kan. 31;
Struthers v. Fuller, 45 Kan. 735; Kil-
mer v. St. Louis, etc., R. Co., 37 Kan.
84. A statement that affiant had made
"numerous inquiries" was held in-
sufficient. Bliss v. Carlson, 17 Kan.
325-
Kentucky. Though not expressly
required by statute, the averment
should be made. See Benge v. Com.,
92 Ky. i; McClurg v. Ingleheart, (Ky.
X 895) 33 S. W. Rep. 80; Earp v. Com.,
9 Dana (Ky.) 301.
Louisiana. Not expressly required
by statute, but should be stated if
known. Huff v. Freeman, 15 La. Ann.
240; Barren v. Mertens, 14 La. Ann.
305; State v. Morgan, 39 La. Ann. 214;
Brown v. Forsyth, 10 Rob. (La.) 116.
Minnesota. Should be stated. Low-
enstein v. Greve, 50 Minn. 383.
Mississippi. In Lundy v. State, 44
Miss. 673, the affidavit was criticised
because " the witness is stated to have
been in the jurisdiction of the court,
but his residence or whereabouts is not
given."
Nebraska. Consult Form No. 6293,
infra, and note.
Nevada. Should be given if known,
though not expressly required by stat-
ute. If the whereabouts of the witness
is unknown, the affidavit should show
reasonable efforts to ascertain the same.
State v. Chapman, 6 Nev. 320.
Sufficiency of averment relating to the
334
Volume 5.
6272.
AD JO URNMENTS.
6272.
now absent and) resides in (stating place of residence). [And that affiant
(or /) verily believe(-f) this cause cannot be tried with justice to
himself (or myself) without the testimony of the said George Jones.]*-
[Or II. That affiant (or 7) cannot safely proceed to (or go into) the
trial of this cause at the present (or next) term of this court (the
same being the term at which this cause is regularly triable), on account
of the (expected) absence of George Jones, who resides at (stating
place of residence), ("and that the grounds of affiant's (or my) expec-
tation of the nonattendance of the said George Jones at the next
term of this court are as follows," stating grounds of expectation).] 2
III. That said George Jones is a material witness on the part of this
affiant (or on my behalf).*
[Or III. That said George Jones is a material, competent and proper
witness in this suit.] 4
[Or III. That the testimony of the said witness is material for
establishing the affiant's claim (or supporting affiant's defense).] 5
IV. That affiant expects 6 (or I expect) to prove by the said George
Jones that (State facts expected to be proved)! 1
aver absolutely, and not merely declare
his belief, that the witness will testify
to the facts stated, but in the United
States the practice is to state that de-
ponent "expects" to prove, etc. How-
ever, the language of the statute in the
particular states should be strictly fol-
lowed on this point. See list of stat-
utes, etc., cited supra, note I, p. 331.
Kentucky. The code provision relat-
ing to this averment is declaratory of
the practice prior to the code so far as
it requires the affiant to state what " he
believes" the witness will prove. See
Owens v. Starr, 2 Litt. (Ky.) 232, and
Smalley v. Anderson, 2 T. B. Mon.
(Ky.) 56, holding that affiant's state-
ment that he " expected to prove cer-
tain facts" was not equivalent to an
expression of a firm belief, and was
therefore insufficient.
Louisiana. That affiant is " advised "
or "hopes" he can prove the facts
stated will not alone suffice. He should
swear positively that he expects or be-
lieves he can do so. Brander v. Flint,
10 La. 391.
New Mexico. An affidavit which
states what the affiant "expects" in-
stead of " believes " witness will prove,
etc., is insufficient. Kent v. Favor, 3 N.
Mex. 219.
7. Statement of Expected Testimony.
At common law, on a first application
for continuance, if there were no cir-
cumstances creating a suspicion that
the application was made merely for
delay, it was sufficient to state that the
testimony of the witness was material.
On subsequent applications, or where
name and residence of the absent wit-
ness as a compliance with the statu-
tory requirement, see infra, note 2,
p. 364.
For necessity of showing diligence in
ascertaining the residence or where-
abouts of a witness when unknown,
see infra, note 5, p. 339.
Although name and residence of wit-
ness were both unknown, an affidavit may
be sufficient under peculiar circum-
stances; for illustration see infra,
Form No. 6286.
1. The words enclosed by [ ] should
be inserted under the practice in the
District of Columbia. Consult list of
statutes, etc., cited supra, note i, p.
331-
2. The averments enclosed by [
constitute paragraph II of the affidavit
as it should be under the North Caro-
lina practice. See list of statutes, etc.,
cited supra, note i, p. 331.
3. The affidavit should allege that the
witness is material. Wilson v. Wheel-
ing, igW.Va. 323; Dimmey v. Wheeling,
etc., R. Co., 27 W. Va. 32. See also
list of statutes cited supra, note I, p.
331-
4. This is paragraph III as it should
be framed under the practice in the
District of Columbia. See statutes, etc. ,
cited supra, note I, p. 331.
5. This is paragraph III as it should
be framed under the Louisiana practice.
See list of statutes, etc., cited supra,
note i. p. 331.
6. Affiant Expects and Believes he can
Prove, etc. It was said in Day v. Sam-
son, Barnes 448, that deponent must
335
Volume 5.
6272.
CONTINUANCES AND
6272.
the circumstances were suspicious, or
the witness was expected to be absent
for a long period, it was necessary
to show the materiality of his testi-
mony by a statement of the facts to
which he was expected to testify. 4
Encycl. of PI. and Pr. 884; 2 Tidd's
Pr-, p. 773-
The common-law practice in this
particular still obtains in a few of the
states. See this practice expounded
and illustrated infra, this note, para-
graphs relating to Kentucky and Tennes-
see; note 3, p. 358-9, relating to Virginia;
Forms Nos. 6276, 6277, and notes to
the latter.
But even in those states it is the con-
stant practice to insert in an affidavit a
full statement of the facts.
In most of the states, however, it is
expressly required by statute or rule of
court that the affidavit shall state the
facts expected to be proved, and show
the materiality thereof. See list of
statutes, etc., cited supra, note i, p.
331. In some jurisdictions the prac-
tice is enforced without any require-
ment of statute or rule of court. See
infra, this note, part relating to New
Mexico; and as to the practice where
the statute seems to leave it to the
option of the applicant, see infra, this
note, part relating to California and
Nevada
Alabama. As indicating the practice
in criminal cases, it may be noted that
in Johnson v. State, 102 Ala. I, the
court said that there was a motion
made by defendant for a continuance
on account of absent witnesses "with
separate written affidavits, setting forth
what they were severally expected to
prove."
California. The following cases
held apparently that it is necessary to
state the facts to which the absent wit-
ness will testify. Carey v. Philadel-
phia, etc., Petroleum Co., 33 Cal. 694;
Kern Valley Bank v. Chester, 55 Cal.
49; People v. Ah Fat, 48 Cal. 63. The
latter case is cited to the same point in
Deering's Anno. Code Civ. Proc., 595,
in a note where the editor adds paren-
thetically, ' ' although the section seems
to give the court an option as to
requiring the moving party to show
the evidence he expects to obtain."
Colorado. The facts must be set
forth with sufficient certainty to enable
the court to determine the materiality
of the evidence, and to enable the
opposite party to admit the facts and
thus avoid continuance. Glenn v.
Brush, 3 Colo. 31; Cody v. Butterfield,
i Colo. 377; Chase v. People, 2 Colo. 513.
Florida. Consult Form No. 6283,
infra, and notes thereto.
Idaho. In Territory v. Guthrie, 2
Idaho 403, and Cox v. Northwestern
Stage Co., r Idaho 376, may be found
an affidavit which sets forth the facts.
Illinois. Consult Forms Nos. 6285,
6286, infra, and notes thereto.
Indiana. Consult Forms Nos. 6287,
6288, infra, and notes thereto.
Iowa. Consult Forms Nos. 6289,
6290, and notes thereto.
Kentucky. The affidavit must show
what facts the affiant believes witness
will prove, and not merely the effect of
such facts. McClurg v. Ingleheart,
(Ky. 1895) 33 S. W. Rep. 80. In Slater
v. Sherman, 5 Bush (Ky.) 211, the de-
fendant filed an affidavit stating in sub-
stance that he could prove, by a witness
who was then absent, that one Mary
Oats, a witness who would be relied
on by the plaintiff, was not present
when the alleged trespasses were sup-
posed to have been committed, and the
court said: "As the affidavit did not
disclose what facts it was expected
the plaintiff would attempt to prove by
Mary Oats, it did not appear whether
it was material to the defense to prove
her absence or not, and it seems to us
that the court did not abuse its discre-
tion in overruling the motion."
Prior to the code, it seems to have
been the universal practice, where the
witness lived within the state not to re-
quire that the facts to be proved by him
should be set forth in the affidavit but
where the witness was a nonresident, it
was necessary to set forth what the
party expected to prove by him.
Simms -v. Alcorn, i Bibb (Ky.) 348;
Letcher v. Starling, I Bibb (Ky.) 433;
Smith v. Snoddy, 2 A. K. Marsh. (Ky.)
382. Likewise, where the application
for continuance was repeated by the
same party. Letcher v. Sterling, i Bibb
(Ky.)432.
Louisiana. It is the usual practice
to state the facts to which it is believed
the witnesses will testify in the first in-
stance. Allard v. Lobau, 3 Martin N. S.
(La.) 293; State v. Bolds, 37 La. Ann. 312;
State v. Duffy, 39 La. Ann. 419; State
v. Moultrie, 33 La. Ann. 1146; Burton
v. Maltby, 18 La. 531; Lex v. Southern
Express Co., 23 La. Ann, 59; Cobb v.
Franks, 6 La. Ann. 769. And the court
may require the party to state the facts.
Raby v. Brown, 14 La. 247; State v.
Celestin, 48 La. Ann. 272.
336
Volume 5.
6272.
AD JO URNMENTS.
6272.
Maryland. See Dean v. Turner, 31
Md. 58, and Form No. 6274, infra, and
notes thereto.
Michigan. See People v. Burwell,
106 Mich. 27; People v. Anderson, 53
Mich. 60, and Form No. 6275, infra,
and annotations thereto.
Minnesota. A mere statement that
the witness is material is insufficient.
Mackubin v. Clarkson, 5 Minn. 247.
Missouri. Consult Form No. 6291,
infra, and notes thereto.
Nebraska. Consult Form No. 6293,
infra, and notes thereto.
Nevada. It is customary to state
the facts at the outset. State v. O' Fla-
herty, 7 Nev. 153; State v. Chapman,
6 Nev. 320.
New Mexico. Bold v. Dold, I N.
Mex. 397; Kent v. Favor, 3 N. Mex.
219; Deemer v. Falkenburg, 4 N.
Mex. 57; Faulkner v. Territory, 6 N.
Mex. 464.
New York. Consult Form No. 6277,
infra, and notes thereto.
Pennsylvania. Consult Form No.
6277, infra, and notes thereto.
'Tennessee. If the application for
continuance is made at the first term at
which the case stands for trial, it is not
necessary to disclose the facts to which
it is expected the absent witness will
testify. Crane v. State, 94 Tenn. 86;
Jones v. State, 10 Lea (Tenn.) 585; State
v. Morris, I Overt. (Tenn.) 220; Nelson
v. State, 2 Swan (Tenn.) 482. But if the
application is made at a second or sub-
sequent term, the facts to which the
witness is expected to testify should be
stated. Nelson v. State, 2 Swan
(Tenn.) 482; Womack v. State, 6
Lea (Tenn.) 153; Rhea v. State, 10
Yerg. (Tenn.) 258.
In a criminal case, the defendant's
affidavit on a first application, which did
not disclose the facts expected to be
proved by the witness, was held de-
fective, because it was nowhere stated,
either directly or indirectly, that the
defendant was innocent of the crime
charged against him. Crane v. State,
94 Tenn. 86.
Texas. Consult Forms Nos. 6295 to
6298, infra, and notes thereto.
Utah. McGrath -v. Tallent, 7 Utah
256.
West Virginia. Under the act of
1882, c. 120, 6, it was held necessary,
if required by any party opposing the
motion for continuance, to set forth in
the affidavit the testimony the witness
was expected to give. Riddle v. Mc-
Ginnis, 22 W. Va. 268.
Wisconsin. Consult Form No. 6282,
infra, and notes thereto.
Facts and not legal conclusions must
be stated. See list of statutes cited
supra, note i, p. 331. Also infra, note
x . P- 367, note 3, p. 374, note i, p. 387;
Chase v. People, 2 Colo. 513; Glenn v.
Brush, 3 Colo. 31; State v. McCoy, 29
La. Ann. 595; Wilson v. Purl, 133 Mo.
367; State v. Good, 132 Mo. 114; State
v. Hilsabeck, 132 Mo. 353; State v. Pin-
nell, 93 Mo. 480.
In Payne v. Kansas City First Nat.
Bank, 16 Kan. 153, the defendant's
affidavit for a continuance stated the
evidence of the absent witness as fol-
lows: " Said evidence is of the fol-
lowing nature, to wit, proving and
tending to prove that defendant, Payne,
was at the time of the taking of the
note herein sued on by plaintiff only
a surety, or indorser, on the same, and
was so known to be at said time by said
plaintiff, the said plaintiff, so as afore-
said knowing said party, released by
its actions said defendant Payne from
all liability thereunder; that plaintiff
has accepted other security, and taken
other notes in lieu of the one sued on."
In pronouncingthis affidavit insufficient,
the court said: " First, the facts are not
stated in sufficient detail. They should
be stated with the same detail that they
would be stated by the witness if he
were on the stand testifying, or if his
deposition was being taken. They are
to be stated so that they may be read
as the deposition of the absent witness,
if the court should consider the affidavit
sufficient, and the opposite side should
choose to admit them. Second, these
facts are not stated to be the facts which
the witness says would prove by their
direct testimony. They are not stated
to be the facts which it is believed the
witnesses would testify to if they were
present.
They are often known
as conclusions of facts or con-
clusions of law. * * * The statute
requires that the party asking a con-
tinuance shall state in his affidavit the
' facts he believes the witness will
prove.' He is not authorized to state the
facts which he believes will be proved
by the facts which he believes the wit-
ness will prove. He must state the
original primary facts as he would
believe they would come from the wit-
ness, and not the conclusions or infer-
ences which might be drawn from these
facts. And he must state the facts in
detail, so that they may be used as a
deposition, and not in that general
5 E. of F. P. 22.
337
Volume 5.
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CONTINUANCES AND
6272.
and comprehensive manner generally
adopted for the statement of facts in
pleadings, or in findings of courts, or
verdicts of juries." These views were
reiterated in Brown v. Johnson, 14 Kan.
377; Board of Regents v. Linscott, 30
Kan. 240; Clouston v. Gray, 48 Kan.
31. In the latter case, the defendant
stated that he expected to prove by one
James Gray "that the property in con-
troversy herein, and which is sought to
be recovered by this plaintiff, was the
property of the said absent witness,
James Gray, and that this plaintiff
never did have any right, title or
interest in the same." The defendant's
claim was that the absent witness had
fraudulently conveyed the property to
the plaintiff, and the foregoing state-
ment was held insufficient as an aver-
ment of ownership. On this point the
court said: " He could have set forth
in the affidavit that James Gray would
have testified if present at the trial; that
he was largely indebted (giving details):
That it pretended to sell the property
to S. F. Gray for the purpose of
defrauding his creditors: That S. F.
Gray had knowledge o'f such intention:
That S. F. Gray did not pay him any-
thing for the property: That James
Gray continued in the possession
of the property: That S. F. Gray
never had possession thereof: That
S. F. Gray never claimed to be the
owner, but on the contrary admitted
that he was not the owner, and that
James Gray was, and that both James
Gray and S. F. Gray had full knowledge
of all these matters and things, and
the affiant should have set forth in his
affidavit all these matters and things
in greater detail than we have stated
them." Johnston, J., dissented, hold-
ing that the affidavit, though not per-
fect, was substantially sufficient.
Materiality of Testimony. The affi-
davit must show that the testimony is
material. See list of statutes, etc.,
cited supra, note I, p. 331, also supra,
note 2, p. 327, relating to absent party
needed as a witness.
California. Kern Valley Bank v.
Chester, 55 Cal. 49; Storch v. McCain,
85 Cal. 306; Cohn v. Brownstone, 93
Cal. 362; People v. Mellon, 40 Cal.
648; People v. Williams, 43 Cal. 344.
Colorado. It must appear that the
facts to which it is expected the witness
will testify not only may be but actually
will be relevant and material. Dawson
v. Coston, iSColo. 493; Cody v. Butter-
field, i Colo. 377. This can usually be
determined by the issues made by the
pleadings, but when there are no plead-
ings it must appear from the affidavit
that such issues will arise upon the
trial and will render the testimony
material. Hewes v. Andrews, 12 Colo.
161, where the application was made
for the continuance of a case pending
in the county court on appeal from a
justice of the peace.
Kansas. Swenson v. Aultman, 14
Kan. 273; Perley v. Taylor, 21 Kan.
712.
Kentucky. McClurg v. Ingleheart,
33 S.. W. Rep. 80; Owens v. Starr, 2
Litt. (Ky.) 231; Grubbs v. Pickett, i A.
K. Marsh. (Ky.) 255; Chambers v.
Handley, 3 J. J. Marsh. (Ky.) 98.
Louisiana. State v . Hollier, 49 La.
Ann. 371; Fusz v. Trager, 39 La.
Ann. 292. But the affiant need not
swear to the competency of the testi-
mony. State z/. Bolds, 37 La. Ann.
312. Affiant's statements in his affidavit
that he expected to prove "all the
matters alleged in his petition" was
held a sufficient declaration of materi-
ality, where the facts set forth in the
petition were material. Winter v.
Donaldsonville, 6 Martin N. S. (La.)
534-
Mississippi. See McDaniel v. State,
8 Smed. & M. (Miss.) 401. The facts
disclosed must appear to be pertinent
and material. Sellars v. Kelly, 45
Miss. 323.
Nebraska. Burgo v. State, 26 Neb.
639; Clark v. Millen, 16 Neb. 481; Polin
v. State, 14 Neb. 549. Consult also
Form No. 6293, infra, and note.
West Virginia. Wilson v. Wheeling,
19 W. Va. 323; Dimmey v. Wheeling,
etc., R. Co., 27 W. Va. 32.
Continuance is properly refused where
the facts as set forth appear to be im-
material, irrelevant or otherwise inad-
missible. Hill v. Austin, 19 Ark. 230;
Ware v. Kelly, 22 Ark. 441; Hamilton v.
State, 62 Ark. 543; Robson v. State, 83
Ga. 169; Cox v. Northwestern Stage Co.,
i Idaho 376; Moore z>. Hawkins, 6
Dana (Ky.) 289; State v. Dale, 89 Mo.
579; Waldo v. Beckwith, i N. Mex. 184;
Walte v. Walsh, 10 Heisk (Tenn.)3i4.
If the court doubts the materiality of
the expected evidence, or the good faith
of the applicant, it may properly re-
quire him to state on oath the facts he
expects to prove by the witness.
Wormley v. Com., 10 Gratt. (Va.) 658;
Harman v. Howe, 27 Gratt. (Va.) 676;
Harris v. Harris, 2 Leigh (Va.) 584.
And if it appears by the affidavit or by
338
Volume 5.
6272.
AD JO URNMENTS.
6272.
[Or IV. That affiant believes (or / believe) the. testimony of the
said George Jones will prove that (State facts).] 1
[Or IV. That affiant believes (or / believe) said witness will testify
to and prove the following facts: (Here state facts. ,)] 2
[Or IV. That affiant believes (or / belime) the said George Jones
will prove that (Here state facts).]*
[Or IV. The evidence I expect (or affiant expects) to obtain from
the said George Jones is as follows : (State the ei'idence.)\*
V. That affiant has (or / have) used due diligence to obtain (or
procure or secure) the testimony of the said George Jones in that
(State diligence used). 5
oral examination that the expected
testimony would be immaterial or in-
admissible, a continuance is properly
refused. Nash v. Upper Appomattox
Co., 5 Gratt. (Va.) 332; Harris v. Harris,
2 Leigh (Va.) 584; Moore v. Com., 9
Leigh (Va.) 639; Wormeley v. Com., 10
Gratt. (Va.) 684. But it is error to over-
rule the motion supported by a sufficient
affidavit upon the incorrect assumption
that the evidence was inadmissible.
Cannon v. State, 60 Ark. 564.
Sufficiency of Averment in Particular
Cases. To prove threats, see infra,
note i, p. 367-8, note 3, p. 374.
To prove deponent is not guilty, see
infra, Form No. 6284 and note I, p. 367.
To prove eviction of deponent from
leased premises, see infra, Form No.
6285.
To prove part payment of claim, see
infra, precedent in note 4, p. 363.
To prove defendant's intoxication,
etc., in murder case, see infra, Form
No. 6286.
To prove an alibi, see infra, note 3,
p. 374; Form No. 6291; note 2, p. 384.
To prove insanity, see infra, Form
No. 6288; note I, p. 387, note 2, p. 392.
To prove killing in self-defense, see
infra, precedent in note 2, p. 384-5 ; Form
No. 6292.
To prove plaintiff's contributory neg-
ligence and defendant's due care, see
infra, Form No. 6293.
Grounds for expecting that the witness
will so testify are sometimes required to
be stated by statute or rule of court.
For sufficiency of grounds stated, see
infra, Form No. 6273.
In Maine, Massachusetts and New
Hampshire, to paragraph IV should be
added this additional averment, " that
affiant's grounds of expectation that the
said witness will prove the foregoing
facts are as follows" (stating grounds of
expectation), or "that affiant's grounds
for expecting the said George Jones to
testify to the foregoing facts are as fol-
lows " (stating the grounds of expecta-
tion). See list of statutes, etc., cited
supra, note I, p. 331.
1. This is paragraph IV as it should
be under the Arkansas and New Mexico
practice. See list of statutes, etc., cited
supra, note i, p. 331.
2. This is paragraph IV as it should
be under the Kansas and Oklahoma
practice. See list of statutes, etc., cited
supra, note I, p. 331.
3. This is paragraph IV as it should
be under the Kentucky, Missouri and
Wyoming practice. See list of statutes,
etc., cited supra, note I, p. 331, and for
the practice in Missouri in criminal
cases see also Form No. 6291.
4. This is paragraph IV as it should
be under the Nevada, Oregon and Utah
practice. See list of statutes, etc., cited
supra, note i, p. 331.
5. Statement of Diligence. The com-
man-law practice requires that ordinary
diligence to procure the testimony of
the absent witness must be shown in
the affidavit in all cases. 2 Tidd's Pr.
772; and see infra, note 2, p. 354.
In most of the states this averment is
required by statute or rule of court,
and the statement ordinarily shows
the particular efforts that have been
made. See 4 Encycl. of PI. and Pr.
881; also list of statutes cited supra,
note i, p. 331.
Arkansas. An averment of dili-
gence in general terms is insufficient.
The facts constituting diligence should
be stated so that the court may decide
upon their sufficiency. Winter v.
Bandel, 30 Ark. 362. For other cases
where the diligence was held sufficient
see Jackson v. State, 54 Ark. 243;
Price v. State, 57 Ark. 165; Burriss v.
Wise, 2 Ark. 33; Golden v. State, 19
Ark. 590.
California. Must state what steps
have been taken to procure the attend-
339
Volume 5.
6272.
CONTINUANCES AND
6272.
ance or deposition of the witness.
Cohn v. Brownstone, 93 Cal. 362;
People v. Thompson, 4 Cal. 241, hold-
ing that an allegation that the party
had used all the diligence in his power
without stating the particulars, is in-
sufficient. The party must have re-
sorted to the proper legal means for
that purpose, or must show to the sat-
isfaction of the court that a resort to
such means would have been unavail-
ing. Kuhland v. Sedgwick, 17 Cal.
123, see also People v. Baker, i Cal.
403, holding that a mere promise by
the witness to attend does not dispense
with the use of legal means to procure
attendance. People v. Lampson, 70 Cal.
204. But circumstances may relieve a
party from the necessity of taking the
deposition of a witness. People v.
Dodge, 28 Cal. 445, where the witness
was sick, but the party had supposed
that he would recover in time to attend
to the trial.
If the witness has been subpoenaed,
the affidavit should state at what time
the subpoena was taken out. People
v. Baker, i Cal. 403. And show that
service was such that witness was
bound to obey. People v. Jocelyn, 29
Cal. 562. And in People v. Weaver,
47 Cal. 106, it was held that it must be
shown that the summoned witness
cannot be readily reached by an at-
tachment.
For cases where it was held that in-
sufficient diligence was shown see
Lightner v. Menzel, 35 Cal. 452; Les-
zinsky v. White, 45 Cal. 278; People v.
Ashnauer, 47 Cal. 98, where the affi-
davit, omitting the formal parts, is
given in full.
For cases where the diligence shown
was held sufficient see People v. Diaz,
6 Cal. 248; People v. Dodge, 28 Cal.
445; People v. McCrory, 41 Cal. 458.
Colorado. A statement that a sub-
poena was issued to another county
and the witness there served is insuffi-
cient, unless it is shown that the sub-
poena was issued in the manner provided
for the issuance of subpoenas to foreign
counties. Dawson v. Coston, 18 Colo.
493. For cases where sufficient dili-
gence was not shown see Cody v. But-
terfield, i Colo. 377; Boyle v. People, 4
Colo. 176, where a subpoena was not
issued until the day the application
was made. Litchfield v. Daniels, i
Colo. 268. In Hirsch v. Ferris, i Colo.
402, the diligence disclosed was held
sufficient, and the refusal of a con-
tinuance to be reversible error. Sick-
ness of a witness disabling him from
attending court is most properly shown
by the affidavit of a physician stating
the facts upon which his opinion is
based. Danielson v. Gude, n Colo. 87,
holding that a party's affidavit that a
physician not named told him that the
witness was sick, etc., was insufficient.
Florida. Consult Form No. 6283,
infra, and notes thereto.
Georgia. Consult Form No. 6284,
infra, and notes thereto.
Illinois. Consult Forms Nos. 6285,
6286, infra, and notes thereto.
Indiana. Consult Forms Nos. 6287,
6288, infra, and notes thereto.
Iowa. Consult Forms Nos. 6289,
6290, infra, and notes thereto.
Kansas. What efforts have been
used must be set forth in the affidavit.
Kilmer v. St. Louis, etc., R.Co., 37 Kan.
84. In the following cases the affidavit
was held insufficient for want of proper
showing of diligence. Educational
Assoc. v. Hitchcock, 4 Kan. 36; Camp-
bell v. Blanke, 13 Kan. 62; Swenson v,
Aultman, 14 Kan. 273; Payne v. Kan-
sas City First Nat. Bank, 16 Kan. 147;
Wyandotte, etc., Gas Co. v. Schliefer,
22 Kan. 468; Wilkins v. Moore, 20 Kan.
538; see also Tucker v. Garner, 25 Kan.
454; State v. Rhea, 25 Kan. 576; Clous-
ton v. Gray, 48 Kan. 31; State v. Barker,
43 Kan. 262; State v. McClain, 49 Kan.
730; State v. Lewis, 56 Kan. 374; Bliss
v. Carlson, 17 Kan. 325; Struthers v.
Fuller, 45 Kan. 735. In State v. Bur-
well, 34 Kan. 312, the affidavit showed
sufficient diligence, and it was held re-
versible error to refuse a continuance.
Kentucky. Must state what steps
have been taken. Benge v. Com., 92
Ky. I. And it ought to be shown that
the witness has- been summoned, or
some legal excuse alleged for failure to
summon him. Chambers v. Handley,
3 J. J. Marsh. (Ky.) 98; Helfrich Saw,
etc., Mill Co. v. Everly, (Ky. 1895) 32
S. W. Rep. 750; McClurgz'. Ingleheart,
(Ky. 1895) 33 S. W. Rep. 80; Simms v.
Alcorn, I Bibb (Ky.) 348; Carr v. Mar-
shall, i Bibb (Ky.)363. " In consider-
ing the question of diligence on a
motion for continuance by the accused
on account of the absence of a witness,
the fact that the Commonwealth had
such witness recognized should have
the same effect as if he had been recog-
nized at the instance of the accused."
Saylor v. Com., 97 Ky. 184, holding that
the continuance should have been
granted. Where the affidavit stated
that subpoenas were issued for the ab-
340
Volume 5.
6272.
AD JO URN MEN TS.
6272.
sent witness, but did not state that they
had been delivered to any officer or
other person authorized to serve them,
it was held insufficient. Mackey v.
Com., 80 Ky. 345; Unsel v. Com., 87
Ky. 368. Contra where the affidavit did
not state that subpoenas had been is-
sued, but subpoenas were on file or
exhibited to the court with the officer's
return of actual service duly endorsed
thereon. Vogt v. Com., 92 Ky. 68.
In Thurman v. Virgin. 18 B. Mon.
(Ky.) 791, it was held that a continu-
ance ought not to be allowed on the
ground of the absence of witnesses re-
siding in another county, unless the
affidavit showed a tender or payment
of witness fees, to which the witness
was thus entitled by statute, or a
waiver of the same. The statute was
subsequently amended, and it appears
from Bullitt's Civ. Code Ky. (1895),
315, note b, that the averment of tender
or payment of fees to such witness
would not now be necessary unless the
officer serving the subpoena returns that
the witness demanded his fees.
Louisiana. For a construction of
the section of the statute relating to
this averment see Klathenhoff v. Ardry,
14 La. 301. The affidavit should state
specifically what efforts have been
taken to procure the testimony of the
absent witness. State v. Clark, 37 La.
Ann. 128; State v. Ryan, 30 La. Ann.
1176; McCarty v. McCarty, 19 La. 296.
A mere declaration in the affidavit that
diligence has been used is not con-
clusive. State v, Clark, 37 La. Ann.
128.
In Prityn v. Gibbons, 24 La. Ann.
232, the affidavit was held insufficient
because it did not show that the appli-
cant was not aware of the witness's
departure, and could not have obtained
his testimony. See also Bank of Or-
leans v. Whittemore, 15 La. 276. For
other cases where the showing of dili-
gence was held insufficient see State v.
Morgan, 39 La. Ann. 214; Ryan v.
Sewell, 18 La. Ann. 221; Edwards
v. Farrar, 2 La. Ann. 307; State v.
Bradley, 6 La. Ann, 554; Golding v.
Steamer C. Castro, 20 La. Ann. 458;
State v. Nelson, 28 La. Ann. 46; State
v. Hornsby, 33 La. Ann. mo; State v.
Primeaux, 39 La. Ann. 673; State v.
Coudier, 36 La. Ann. 291; State v. Corn-
stock, 36 La. Ann. 308; State v. Cheval-
lier, 36 La. Ann. 81; State v. Foster,
36 La. Ann. 877; State v. Williams,
36 La. Ann. 854; State v. Venables, 40
La. Ann. 215; Mills v. Fellows, 30 La.
Ann. 824; Beatty v. Tete, 9 La. Ann.
129; State v. Herton, 33 La. Ann. 289;
Cobb v. Franks, 6 La. Ann. 769; Lex v.
Southern Express Co., 23 La. Ann. 59;
State v. George, 37 La. Ann. 786; State
v. Moultrie, 33 La. Ann. 1146; State v.
Bassenger, 39 La. Ann. 918.
For cases where the diligence dis-
closed was held sufficient, and the re-
fusal of a continuance ground for new
trial, see State v. Davis, 37 La. Ann.
441; State v. Egan, 37 La. Ann. 368;
State v. Briggs, 34 La. Ann. 69; State
v. Thomas, 40 La. Ann. 151; Bell v.
Williams, 3 La. 447; State v. Boitreaux,
31 La. Ann. 188; Klathenhoff v. Ardry,
14 La. 301.
Minnesota. Facts stating diligence
should be set forth. Washington
County v. McCoy, I Minn. 100, being a
case before a justice of the peace, hold-
ing that it is not enough to swear that
due diligence has been used. If a sub-
poena has been served, and the party
applies for a continuance for the term,
it ought to appear that the witness is
not within reach of a process of attach-
ment. West v. Henessey, 63 Minn.
378.
For cases where diligence was held
insufficient, see Mackubin v. Clarkson,
5 Minn. 247; Holmes v. Corbin, 50
Minn. 209. The showing was held
sufficient in Wright v. Levy, 22 Minn.
466.
Mississippi. Should state what steps
have been taken to procure the testi-
mony, such as the issuance and service
of a subpoena, or a sufficient excuse for
the omission. See Lundy v. State, 44
Miss. 673; Noe v. State, 4 How. (Miss.)
330.
Missouri, Consult Form No. 6291,
infra, and notes thereto.
Nebraska. Consult Form No. 6293,
infra, and notes thereto.
Nevada. If a subpoena has been
issued, but not served, the affidavit
should aver positively that the officer
was informed of the whereabouts of
the witness. State v. O'Flaherty, 7
Nev. 153; State v. Gray, 19 Nev. 212.
For a sufficient showing of diligence
see Beatty v. Sylvester, 3 Nev. 228;
Choate v. Bullion Min. Co., i Nev.
73-
New Mexico. Diligence must be
affirmatively established. Anderson v.
Territory, 4 N. Mex. 108, where the
affidavit held insufficient is quoted so
far as it relates to diligence. For other
cases of insufficient diligence see
Waldo v. Beckwith, i N. Mex. 184;
341
Volume 5.
6272.
CONTINUANCES AND
6272.
\Or V. That I have used proper and reasonable endeavors to pro-
cure the testimony of the said George Jones in that (Here state the
endeavors made).]*
VI. That affiant believes (or I believe} the matters (or facts or evi-
dence) above set forth (as facts'), which he expects (or / expect) to
prove by (or procure from) the said George Jones, are (or is) true. 2
Territory v. McFarlane, 7 N. Mex. 421;
Faulkner v. Territory, 6 N. Mex. 464.
New York. Consult Form No. 6277,
infra, and notes thereto.
Pennsylvania. Consult Form No.
6277, infra.
7'ennessee. Even on the first appli-
cation the applicant must show that he
has used due diligence to obtain the
absent testimony. Womack v. State,
6 Lea (Tenn.) 153; State v. Morris, I
Overt. (Tenn.) 220, quoted in Jones v.
State, 10 Lea (Tenn.) 589. See also
Nashville, etc., R. Co. v. Johnson, 15
Lea (Tenn.) 677.
Texas. Consult Forms Nos. 6295
to 6298, infra, and notes thereto.
Utah. See McGrath v. Tallent, 7
Utah 256; People v. Wiggins, I Utah
324. If a subpoena was issued and re-
turned not found, this is not sufficient,
unless the affidavit shows when the
subpoena was issued. People v. Garns,
2 Utah 260.
Virginia. Consult precedent in
note 3, p. 358-9, and cases cited.
Washington, An affidavit which did
not show any effort to locate a witness
whose whereabouts were unknown
was held insufficient. State v. Crae-
mer, 12 Wash. 217; State v. Hutchin-
son, 14 Wash. 580. See also, for
insufficient showing of diligence, State
v. Wilson, 9 Wash. 218; Juch v. Hanna,
ii Wash. 676.
West Virginia, What steps have
been taken to procure the testimony
should be stated. Buster v. Holland,
27 W. Va. 511. For cases where dili-
gence was held insufficient see Dimmey
v. Wheeling, etc., R. Co., 27 W. Va. 32;
Tompkins v. Burgess, 2 W. Va. 187;
Davis v. Walker, 7 W. Va. 447; Wilson
v. Wheeling, 19 W. Va. 323.
Wisconsin. Consult Form No. 6282,
infra, and notes thereto.
Wyoming. Where it did not appear
from the record that any subpoena had
been issued or asked for, the refusal of a
continuance was sustained. Kearney
Stone Works v. McPherson, (Wyoming,
1895) 38 Pac. Rep. 920. Likewise,
where it appeared that subpoenas were
issued, but did not clearly appear when
issued or served. McKinney v. State,
3 Wyoming 721.
As to the sufficiency of the averment of
diligence, etc., see generally supra, this
note, including the cross-references,
and infra, Form No. 6292.
As to the sufficiency of averments)
concerning issuance and service of a
subpoena see supra, this note, including
cross-references; infra, Virginia prece-
dent in note 3, p. 358-9, note 2, p. 361,
note 5, p. 362, note I, p. 376; Form No.
6289; note I, p. 380; Form No. 6291 and
precedents in the notes thereto; prece-
dents in note 4, p. 398; Form No. 6295;
note i, p. 401, note 9, p. 402-3.
Sufficiency of averments of unsuc-
cessful efforts to ascertain the where-
abouts of the witness, see infra,
precedent in note 4, p. 363; Form No.
6286; note 3, p. 375; Forms Nos. 6289,
6293; note 3, p. 393.
Sufficiency of showing that the wit-
ness is absent by reason of sickness,
see supra, note 2, p. 327; infra, Form
No. 6284; Form No. 6288 and notes
thereto; note i, p. 380; Forms Nos.
6291, 6295; note 4, p. 385, note I, p. 386;
precedent in note 4, p. 388-9; Form
No. 6305 and notes thereto.
1. This is paragraph V as it should
be under the practice of the District of
Columbia.
In Maine, Massachusetts and New
Hampshire, paragraph V of the affi-
davit should read as follows: "V.
That the endeavors and means which
affiant has (or / have) used to procure
the attendance or deposition of said
witness are as follows " (stating en-
deavors used); or "V. That endeavors
and means have x been used to procure
the attendance or deposition of the
said George Jones as follows, to wit"
(stating endeavors used).
2. Expected Testimony Believed to be
True. This averment is sometimes
required by statute or rule of court.
See infra, note 2, p. 388.
And apart from statutory require-
ment it is frequently inserted, and, fur-
thermore, courts have held it to be
necessary. See infra, note 2, p. 368.
Kentucky. The affidavit must show
342
Volume 5.
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6272.
[Via. That affiant (or 7) verily believe (V) this cause cannot be
tried with justice to himself (or myself) without .the testimony of said
George fanes.] 1
VII. That affiant knows (or I know) of no other person (or witness)
by whom affiant (or /) can prove the same matters (or facts). 2
"that the affiant believes" the testi-
mony to be true. Benge v. Com., 92
Ky. i; Helfrich Saw, etc., Co. v. Everly,
(Ky. 1895) 32 S. W. Rep. 75, where
the affidavit was held defective in this
particular.
Missouri. Must state that appli-
cant believes the facts to which the ab-
sent witness will testify are true. For
want of this averment the affidavit will
be held defective. In State v. Dusen-
berry, 112 Mo. 277; State v. Bryant, 93
Mo. 273; State v. Aired, 115 Mo. 471;
State v. Underwood, 76 Mo. 630; State
v. Maguire, 69 Mo. 198, holding that
this averment was unnecessary where
the defendant had pleaded not guilty,
was decided before the enactment of
the present provision of the statute.
See, for the practice in criminal cases,
infra, Form No. 6291 and notes thereto.
1. Paragraph Via should be inserted
under the District of Columbia practice.
See list of statutes, etc., cited supra,
note i, p. 331.
2. No Other Witness to Same Facts.
This averment, with slight variations
and phraseology, is required by statute
or rule of court in many of the states.
That the language of the statute must
be followed verbatim et literatim, see
infra, note 3, p. 388. It has also been
held to be necessary in the absence of
any specific requirement or rule of
court. See infra, this note, also supra,
note 2, p. 327, and infra, note on p. 359
relating to Virginia; note 10, p. 362, note
I, p. 368, note i, p. 393.
Arkansas. This averment is not
required by the statute now in force
(Sand. & H. Dig. (1894), 5797), nor
was it required by Mansfield's Dig.
(1884), 5108; nevertheless, in Jackson
v. State, 54 Ark. 243, decided in 1891,
where the affidavit was held insufficient
in its showing of diligence, the court
said: " It will also be observed that the
motion does not say that there were not
other witnesses by whom the same facts
could be proved, but only that defendant,
knew of no other by whom he could so
well prove them." It seems that there
was a statute in force in 1847, cited in
Turner v. Eustis, 8 Ark. 120, which re-
quired an averment that the same facts
could not be established by any other
witness.
California. The affidavit should
state that the same facts could not be
proved by any other witness whose
testimony can be procured. Pierce v.
Payne, 14 Cal. 419; Pope v. Dalton, 31
Cal. 218; People v. Gaunt, 23 Cal. 156;
People v. Thompson, 4 Cal. 241; Peo-
ple v. Ah Fat, 48 Cal. 63; People v.
Jenkins, 56 Cal. 5; People v. Ashnauer,
47 Cal. 98; People v. Quincy, 8 Cal. 89.
But the rule requiring that the absent
evidence shall not be merely cumula-
tive does not apply where the only evi-
dence to the same fact is that of an
interested party, especially where it is
that of a defendant in a criminal case.
People v. Ah Lee Doon, 97 Cal. 171.
Colorado. The code does not require
this statement. But in Danielson v.
Gude, II Colo. 87, where it was held
that a continuance was properly re-
fused, the court said: " It does not
appear from the affidavit but that the
same facts desired to be proved by the
witness can be proven by other wit-
nesses." And in Mutzenburg v. Mc-
Gowan, (Colo. App. 1897) 51 Pac. Rep.
523, this averment in the affidavit was
held to be essential.
Georgia. Consult Form No. 6284,
infra, and notes thereto.
Illinois. Consult Forms Nos. 6285,
6286, infra, and notes thereto.
Indiana. Consult Forms Nos. 6287,
6288, infra, and notes thereto.
Iowa. Consult Forms Nos. 6289,
6290, infra, and notes thereto.
Kansas. This statement is not re-
quired by the statute, but if it is ap-
parent that the facts stated could be
proved by other witnesses the continu-
ance will be denied. Board of Regents
v. Linscott, 30 Kan. 240. But see also
Clouston v. Gray, 48 Kan. 36.
Kentucky. This statement is not re-
quired by the code, but is proper in all
cases. If it appears that the same
facts can be proved by other witnesses
present, it is not necessarily conclusive
against the application, for these wit-
nesses may not be entitled to credit or
may be witnesses for the opposite party
and hostile to the applicant; but under
343
Volume 5.
6272.
CONTINUANCES AND
6272.
[Or VII. That such testimony cannot be obtained from any other
source.] 1
[Or VII. That affiant cannot prove the same facts by any other per-
son (or witness).'} 2
[Or VII. That affiant is unable to prove said facts by any other
person whose testimony can be procured.] 3
[Or VII. That there is no other person by whom affiant can prove
the same facts.] 4
[Or VII. That affiant has no other witness by whom he can prove
the same facts.] 5
[Or VII. That affiant knows of no other person, whose evidence or
attendance could have been procured at this term, by whom he could
such circumstances care should be
taken to assert positively in the affida-
vit that the presence of absent wit-
nesses is indispensable and that the
case on this point cannot safely be
trusted to the testimony present. Owens
v. Starr, 2 Litt. (Ky.) 232.
Louisiana. This averment not re-
quired by the statute; nevertheless the
affidavit is regarded defective without
it. State v. Comstock, 36 La. Ann.
308. Thus, in State v. Robinson, 29 La.
Ann. 364, where the affidavit was held
insufficient, the court said: It does not
aver that the fact sought to be proved
by him could not be proved by other
witnesses known to the accused, but
merely that "the deponents cannot
prove the facts by any other witness
summoned here today on their behalf,"
which latter case was followed in State
v. Bradley, 30 La. Ann. 326. To the
same effect also State v. Bolds, 37 La.
Ann. 312; State v. Primeaux, 39 La.
Ann. 673. But compare Harrison v.
Waymouth, 3 Rob. (La. ) 340, and Hew-
lett v. Henderson, 9 Rob. (La.) 379.
Mississippi. See Long v. State, 52
Miss. 33, where the affidavit contained
this averment.
Missouri. Consult Form No. 6291,
infra, and notes thereto.
Nebraska. Consult Form No. 6293,
infra, and notes thereto.
Nevada. This averment is necessary.
State v. Marshall, 19 Nev. 240. And
was inserted in the affidavits in State v.
O' Flaherty, 7 Nev. 153; and Choate v.
Buliion Min. Co., i Nev. 73.
New Mexico. An affidavit is defec-
tive which, instead of using the lan-
guage of the statute, states that affiant
"cannot prove the same facts by any
other person present." Kent v. Favor,
3 N. Mex. 219.
New York. Consult Form No. 6277,
infra, and notes thereto.
Pennsylvania. Consult Form No.
6277, infra.
South Dakota. Consult Form No.
6294, infra, and notes thereto.
Tennessee. This averment is neces-
sary, though not required by the
code. See Walt v. Walsh, 10 Heisk.
(Tenn.) 314; Rhea z>. State, 10 Yerg.
(Tenn.) 258; Brown v. State, 85 (Tenn.)
440; State v. Morris, I Overt. (Tenn.)
220; Cornwell v. State, Mart. & Y.
(Tenn.) 147; Jones v. State, 10 Lea
(Tenn.) 589.
Texas. Consult Forms Nos. 6295 to
6298, infra, and notes thereto.
Utah. In People v. Garns, 2 Utah
260, it was held that the affiadavit
should show that there are no other
witnesses by whom the same facts can
be proved. .
Virginia. Consult precedent infra,
note on p. 359.
West . Virginia. Affidavit should
state that the same facts cannot be
proved by any other witness, oral least
not by any other witness in attendance.
Dimmey v. Wheeling, etc., R. Co., 27
W. Va. 32; Wilson v. Wheeling, 19 W.
Va. 323.
Wisconsin. Consult Form No. 6282,
infra, and notes thereto.
1. This is paragraph VII as it
should be under the Arizona practice.
2. This is paragraph VII as it
should be under the Arkansas, Nevada,
North Carolina, Tennessee, Utah and
Washington practice.
3. This is paragraph VII as it 'should
be under the California practice.
4. This is paragraph VII as it should
be under the Colorado practice.
5. This is paragraph VII as it should
be under the Florida practice.
344
Volume 5.
6272.
AD JO URNMENTS.
6272.
prove, or so fully prove, the same facts.] 1
[Or VII. That affiant knows of no other wjtness by whom the
foregoing facts can be fully proved.] 2
[Or VII. That the facts which the said George Jones will prove
cannot be proved by any other witness.] 3
[Or VII. That affiant is unable to prove these facts by any other
witness whose testimony can be readily procured.] 4
VIII. That the said George Jones is not absent by the consent, pro-
curement or connivance of the affiant. 5
[Or VIII. That the said witness is absent without the consent or
procurement of affiant, directly or indirectly given.] 6
[Or VIII. That the absence of the said George Jones has not been
procured by the act or connivance of the affiant, nor by others at
his request, nor with his knowledge or consent.] 7
IX. That affiant expects (or / expect) to procure (or obtain or
secure) the testimony of the said George Jones at the next term of
this court. 8
1. This is paragraph VII as it should
be under the Missouri practice.
2. This is paragraph VII as it should
be under the New Mexico practice.
3. This is paragraph VII as it should
be under the West Virginia practice.
4. This is paragraph VII as it should
be under the Wyoming practice.
5. Witness Not Absent by Consent, etc.
This averment is frequently required
by statute, in which case the language
of the statute must be strictly followed.
See infra, note 2, p. 404. And the aver-
ment has been held to be necessary
even where no statute requires it. See
infra, note 3, p. 361, note 2, p. 369,
and also infra, this note.
Georgia. See Collins v. State, 78
Ga. 87.
Illinois. Consult Forms Nos. 6285,
6286, infra, and notes thereto.
Indiana. Consult Forms Nos. 6287,
6288, infra, and notes thereto.
Iowa. Consult Forms Nos. 6289,
6290, infra, and notes thereto.
Mississippi. Lundy v. State, 44 Miss.
673. In Ogle v. State, 33 Miss. 384, an
affidavit stated that the witness was not
absent by consent or procurement.
Missouri. State v. Bryant, 93 Mo.
273-
South Dakota. Consult Form No.
6294, infra, and notes thereto.
Tennessee. As to this averment, see
State v. Morris, I Overt. (Tenn.) 220,
quoted in Jones z/. State, 10 Lea (Tenn.)
589; Walt v. Walsh, 10 Heisk. (Tenn.)
314; Brown v. State, 85 Tenn. 440.
Texas. Consult Forms Nos. 6295 to
6298, infra, and notes thereto.
Utah. In People v. Wiggins, I Utah
345
324, where the continuance was held to
have been properly refused, the court
said: " There is nothing in the affida-
vit to show that the witness did not go
away by his consent."
Wisconsin. Consult Form No. 6282,
infra, and notes thereto.
6. This is paragraph VIII as it
should be under the Florida practice.
7. This is paragraph VIII as it
should be under the Wyoming practice.
8. Expectation of Procuring the Testi-
mony. Obviously the court will not
continue a cause on account of the ab-
sence of a witness if it appears alto-
gether improbable that his testimony
will not be had at the time to which it
is sought to defer the trial. Hence it is
the almost invariable practice to insert
this averment in the affidavit. It is
frequently required by express statu-
tory provision or rule of court, and in
the absence of such requirements it
has been held to be necessary. See
supra, note 2, p. 327, and infra, note
4, p. 354, note I, p. 369.
California. The application will be
denied if the affidavit does not make it
probable that the testimony of the ab-
sent witness can be procured within a
reasonable time. People v. Sanders,
114 Cal. 216; Harper v. Lamping, 33
Cal. 641; People v. Ah Fat, 48 Cal. 63;
People v. Lewis, 64 Cal. 401; People v.
Francis, 38 Cal. 188; People v. Ah
Yute, 53 Cal. 613, the last two cases be-
ing very exacting on this point.
Colorado. The code does not re-
quire this statement, but it is prudent
to insert it. Wilson v. People, 3 Colo.
325; Michael v. Mills, 22 Colo. 439;
Volume 5.
6272.
CONTINUANCES AND
6272.
[Or IX. That I have reasonable expectation and belief that the
Dawson v. Coston, 18 Colo. 493, all of
which held that the continuance will be
refused if it does not appear probable
that the testimony can be procured.
Georgia. Consult Form No. 6284,
infra, and notes thereto.
Illinois. Consult Forms Nos. 6285,
6286, infra, and notes thereto.
Indiana. Consult Forms Nos. 6287,
6288, infra, and notes thereto.
Iowa. Consult Forms Nos. 6289,
6290, infra, and notes thereto.
Kansas. Where the witness was ab-
sent in another state, and his address
unknown, the continuance was prop-
erly denied. "The defendant said he
expected to procure his testimony at
the succeeding term, but no facts were
alleged from which the court could see
that there was any probability thereof."
Bliss v. Carlson, 17 Kan. 325. And
under similar circumstances a continu-
ance was denied in Kilmer v. St. Louis,
etc., R. Co., 37 Kan. 84.
Kentucky. This statement is not re-
quired by the code, but is commonly
inserted. Where the witness has no
fixed residence, and his whereabouts
are unknown, the affidavit ought to
show that his attendance is expected at
the next term. Earp v. Com., 9 Dana
(Ky.) 301. And where the witness re-
sided in Kansas, and was admittedly
unfriendly to the affiant, the continu-
ance was refused because nothing was
stated to induce the belief that the wit-
ness could be procured by the next
term. Kennedy v. Com., 78 Ky. 454.
But if the affidavit shows that the wit-
ness is within reach of process it is
fair to presume that he can be coerced
to attend at the next term. Morgan v.
Com., 14 Bush (Ky.) in. And where the
witness resided in Ohio, but the affidavit
stated that he was in the habit of visiting
the place where the trial was pending,
had been served with process, and had
promised to appear at the next term,
and it was alleged that the affiant could
procure his attendance at the next
term, the affidavit being in other re-
spects sufficient, it was held reversible
error to refuse the continuance, as there
were reasonable grounds to believe that
his attendance could be had. White
v. Com., 80 Ky. 480.
Louisiana. The affidavit must al-
lege that the party expects to have the
testimony of the absent witness at the
time to which he seeks to continue
the case, although this showing is not
required by the statute. Allard v.
Labau, 3 Martin N. S. (La.) 293; Gay
v. Kendig, 2 Rob. (La.) 472; Silva v.
Lafaye, 2 La. 198; Richardson v.
Debuys, 4 Martin N. S. (La.) 129;
State v. Williams, 36 La. Ann. 854;
State v. Robinson, 29 La. Ann. 364;
Borron v. Mertens, 14 La. Ann. 305;
Brander v. Flint, 10 La. 391; Anderson
v. Birdsall, 19 La. 441; Thompson .
Mississippi M. & F. Ins. Co., 2 La.
234. That such is the practice see also
State v. Moultrie, 33 La. Ann. 1146;
State v. Egan, 37 La. Ann. 368; State v.
Bolds, 37 La. Ann. 312; State v. Briggs,
34 La. Ann. 69.
And if it appears that there is no
reasonable certainty that the testimony
can and will be procured, the continu-
ance will not be granted. State v.
Duffy, 39 La. Ann. 419, where the only
statement on the subject was as fol-
lows: " That the witnesses are labor-
ing men, and your deponent is informed
that they have procured work across
the lake, in the state of Mississippi,
which will occupy them some time, but
not more than a month; that they are
residents of this state, which is their
home, and will not return before the
next term," coupled with the additional
statement that " The presence of such
witnesses can be had at the next term."
This was held insufficient.
And in Harrison v. Waymouth, 3
Rob. (La.) 340, the court said: " Had
the defendants sworn that they were
informed that the witness was expected
to return within a week or a month,
this would have sufficed. They swore
that they were informed that he had
left the city for a few days. This cer-
tainly means that he intended to return
within that time," and the affidavit was
held sufficient.
Minnesota. In Lowenstein v. Greve,
50 Minn. 383, it was held that the ap-
plication was properly denied because
the residence of the witnesses was un-
known, and the witnesses had not been
heard from for many years, and it did
not satisfactorily appear that there
was any prospect of getting their evi-
dence.
Mississippi. The averment is not
required by statute. But in Noe v.
State, 4 How. (Miss.) 330, the affidavit
was pronounced insufficient " in not
stating that he expected to procure the
attendance of the witness at the next
term."
846
Volume 5.
6272.
AD JO URNMENTS.
6272.
testimony of the said George Jones can be procured by the next term
of this court.] 1
[Or IX. That affiant expects to have the said witness present at
the next term of this court.] 2
[Or IX. That this affiant believes he will procure the attendance
and testimony of the said George Jones by the next term of this
court, and affiant's grounds for such belief are as-follows: {Here
state facts showing reasonable grounds of belief, if these are not appar-
ent in the other parts of the affidavit, ,)] 3
[Or IX. That affiant believes the attendance or testimony of the
said George Jones will be procured at the next term of this court,
and that the grounds for such belief are as follows: (Here state facts
showing reasonable grounds of belief '.)] 4
[Or IX. That affiant believes he can procure the testimony of the
said George Jones at the next term of this court.] 5
[Or IX. That affiant expects and believes he can procure the testi-
mony of the said George Jones by the next term of this court.] 8
X. That this application (or continuance) is not made (or sought)
for delay merely, but that justice may be done. 7
Missouri. Consult Form No. 6291,
infra, and notes thereto.
Nebraska. Consult Form No. 6293,
infra, and notes thereto.
Nevada. This averment is usually
deemed necessary. State v. O'Flaherty,
7 Nev. 153. And the facts showing a
reasonable ground for belief that the
testimony can be procured should be
alleged where the witnesses's where-
abouts are unknown. State v. Gray, 19
Nev. 212. Or where he is out of the
state. State v. Chapman, 6 Nev. 320;
State v. Rosemurgey, 9 Nev. 308.
New York. Consult Form No. 6277,
infra, and notes thereto.
Oregon. Where the witness has no
fixed residence, a clear showing should
be made of the circumstances tending
to prove the probability of obtaining
his evidence. State v. Leonard, 3 Ore-
gon 157, where the substance of an
insufficient affidavit is given. The
same rule obtains where the witness
resides out of the state. State v.
O'Neil, 13 Oregon 183, holding that in
such a case it was not enough for the
affiant to declare in his affidavit " I am
confident I can procure his attendance
at the next term."
Pennsylvania. Consult Form No.
6277, infra, and notes thereto.
South Dakota. Consult Form No.
6294, infra, and notes thereto.
Tennessee. See State v . Morris, I
Overt. (Tenn.) 220, quoted in Jones v,
State, 10 Lea (Tenn.) 589.
Texas. Consult Forms Nos. 6295
to 6298, infra, and notes thereto.
Washington. Where the witness re-
sides out of the state, the affidavit
should state the facts, showing the
probability of procuring the testimony
of such witness in case of a continu-
ance. State v. Hutchinson, 14 Wash.
580.
Wisconsin. Consult Form No. 6282,
infra, and notes thereto.
1. This is paragraph IX as it should
be under the practice in the District of
Columbia.
2. This is paragraph IX as it should
be under the Florida practice.
3. This is paragraph IX as it should
be under the Missouri practice.
Grounds for expectation in procuring
the testimony of the absent witness
within a reasonable time, or at the next
term of court, under some circumstances
must be stated. 2 Tidd's Pr., pp. 772,
773; Rex v. D'Eon, 3 Burr. 1514. See
also infra, note I, p. 369; Form No.
6286; note 2, p. 376, note 3, p. 381, note
I, p. 388, note 4, p. 393; Form No. 6294;
note 3, p. 405.
4. This is paragraph IX as it should
be under the New Mexico practice.
5. This is paragraph IX as it should
be under the Washington practice.
6. This is paragraph IX as it should
be under the Wyoming practice.
7. Application Not Made for Delay, etc.
This averment is one of the common-
places of affidavits for continuance, and
is almost invariably inserted, being
sometimes expressly required by statute
or rule of court. See list of statutes,
etc., cited supra, note I, p. 331. And
347
Volume 5.
6273.
CONTINUANCES AND
6273.
[Or X. That this application is not made for vexation or delay,
but in good faith, for the purpose of obtaining a fair and impartial
trial.] 1
[XI. That the facts on which this application is founded occurred,
or came to the knowledge of the affiant, too late to allow affiant to
apply for a continuance, as prescribed by section 401 of the North
Carolina Code of Civil Procedure; and that this application is made as
soon as it reasonably could be made after the facts stated herein
came to affiant's knowledge.] 2
John Doe (or Richard Roe).
[Subscribed and sworn to before me i\\\s fifth day of October, iS97.
Calvin Clark, Clerk of the Circuit Court.] 3
John Doe
Ri^dRoe.
Form No. 6273.*
) Jn the Superior Coui% Li tchfield County.
Term > to wit '
State of Connecticut, \
Litchfield County, j
John W. Hester, of Warren, of lawful age, being duly sworn,
in several states where the averment is
not required by statute or rule of court,
the courts have nevertheless held it to
be necessary. See infra, this note.
Arkansas. This averment is not re-
quired by the statute now in force
(Sand. & H. Dig. (1894), 5797); but a
statute in force in 1847, quoted in
Turner v. Eustis, 8 Ark. 121, required
that the affidavit should state that the
" application is not made for delay, but
that justice may be done." And it was
held in the case last cited, where the
affidavit recited that " this application
is not made for delay, but that the law
may be administered," that the depar-
ture from the language of the statute
was a fatal defect.
California. Should state that it is
not made for delay merely. People v.
Thompson, 4 Cal. 241; People v. Jen-
kins, 56 Cal. 5.
Florida. Consult Form No. 6283,
infra, and notes thereto.
Georgia. Consult Form No. 6284,
infra, and notes thereto.
Kansas. See Clouston v. Gray, 48
Kan. 36.
Louisiana. Statement not required
by statute, but deemed necessary by
the courts. Allard v. Lobau, 3 Martin
N. S. (La.) 293; Richardson v. Debuys,
4 Martin N. S. (La.) 129; see also State
v. Foster, 36 La. Ann. 877; State v.
Moultrie, 33 La. Ann. 1146; Bradner v.
Flint, 10 La. 391; Harrison v. Way-
mouth, 3 Rob. (La.) 340.
Missouri. Consult Form No. 6291,
infra, and notes thereto.
Nevada. This averment was in-
serted in State v. O'Flaherty, 7 Nev.
153-
1. This is paragraph X as it should
be under the Missouri practice in civil
cases. As to Missouri practice in crimi-
nal cases, see Form No. 6291, infra.
2. Paragraph XI should be added
under North Carolina practice. See
list of statutes, etc., cited supra, note
I, P- 33i.
3. For formal parts of an affidavit
generally, and particularly of jurats,
consult the title AFFIDAVITS, vol. i, p.
560 et seq.
4. Connecticut. Section 2, rule No. 8,
of the General Rules of Practice pro-
vides that " Whenever a motion is
made for the continuance of a cause,
on account of the absence of a ma-
terial witness, such motion, if the
adverse party require it, shall be sup-
ported by an affidavit, stating the name
of the absent witness, if known, and
the particular facts, which, it is be-
lieved, can be proved by him, with the
grounds of such belief." In practice
an affidavit is seldom required, an oral
statement being accepted as satisfac-
tory, and there is no well defined usage
as to the form of an affidavit. The rule
above quoted further provides that a
continuance may be avoided by a writ-
ten admission at the foot of the affi-
davit that the witness would testify to
348
Volume 5.
6274.
AD JO URNMENTS.
6274.
deposes and says: My name \sjohn W. Hester. I am sixty-seven
years of age. I reside in Warren, Connecticut. I am a carriage-
maker by trade and am engaged in that business. I know the par-
ties in this case. I know William Muldoon, on account of whose
absence a continuance is asked by the plaintiff. Mr. Muldoon has
worked for me in my shop for seven years, or thereabouts. He is a
native of Ireland, and is now on a voyage to his" birthplace. He
expects to return in the fall or early winter. He is an intelligent
man, and is a credible person. In conversation with him last year
he told me {Here follows a statement of the particular facts which it
was believed the witness would prove).
John W. Hester.
Subscribed and sworn to before me this third day of May, \W8.
Elbert P. Roberts, Justice of the Peace.
John Doe
against
Richard Roe.
Form No. 6274.'
In the Circuit Court of Allegany County.
(Suggestion for Continuance^
State of Maryland, \
' f
To wit.
County of Allegany.
I hereby certify that on the first day of February, in the year iS98,
before the subscriber, a justice of the peace of the state of Maryland
in and for the county of Allegany aforesaid, personally appeared John
Doe (or Richard Roe)* and made oath upon the Holy Evangely of
Almighty God.
I. {Like paragraph I in Form No. 6272).
II. That affiant believes his cause cannot be tried with justice to
the facts stated in the affidavit. Of
course if such an admission is sought
the showing for a continuance must
be made by affidavit. The foregoing
rule was first promulgated in 1847
(see 18 Conn. 565) and is quoted
in 2 Swift's Dig. (ed. 1884), p. 699,
preceded by the statement that "The
materiality of the testimony generally
rests on the professional statement of
counsel."
This form, excepting dates and
names, is substantially a copy of an
affidavit used in a case by one of the
most eminent practitioners in the state.
1. The Statutory Provisions. " Upon
suggestion, supported by the affidavit
of the party, or some other credible
person, that the evidence of a witness
who resides in some place beyond the
Jimits of this state, or the evidence of a
witness residing within this state, is
wanting, the court shall continue the
cause for such time as may be deemed
necessary to enable the party to procure
the attendance or obtain the testimony
of such absent witness; provided, the
party applying for the continuance shall
comply with the provisions of the two
following sections." Md. Pub. Gen.
Laws (1888), art. 75, 57.
2. The suggestion referred to in the
text may be made by the attorney in
the following form: "John Doe (or
Richard Roe), plaintiff (or defendant} in
the above entitled cause, appearing by
Daniel Webster, his attorney, respect-
fully suggests to the court here that the
evidence of one George Jones, a witness
who resides in the city of Wilmington,
state of Delaware, is wanting, and that
{Here set out allegations in substance as
set out in the affidavit in Form No. 6274).
Daniel Webster,
Attorney for Plaintiff (or Defendant)."
3. Who may Hake Affidavit. The affi-
davit may be made by " the party apply-
ing for a continuance" or " some other
credible person." Md. Pub. Gen.
Laws (1888), art. 75, 58.
349
Volume 5.
6275. CONTINUANCES AND 6275.
himself without the evidence of George Jones^ who is an absent
witness.
III. That said George Jones resides in {State place of residence)*
IV. That the testimony of the said George Jones is material, com-
petent and proper in this suit. 3
V. That affiant believes the said Jones will prove the following
facts (Here state facts).*
VI. That affiant has used his proper and reasonable endeavors to
procure the testimony of the said George Jones. 3
VII. That he has reasonable expectations and belief that the same
can be procured in a reasonable time, 3 to wit, by the day of
, i8## (or by the next term of this court).
Abraham Kent, Justice of the Peace.
Form No. 6 2 7 5 .*
Circuit Court for the County of Calhoun.
John Doe, plaintiff, )
against V
Richard Roe, defendant. )
Calhoun County, ss.
John Doe (or Richard Roe), being duly sworn, says:
I. {Like paragraph I in Form No. 6272.)
II. That notice that said cause would be brought on for trial at the
next term of said court, to be held at the court-house in the city of
Marshall, in said county, on the first day of March, iS97, was served
by said plaintiff (or defendant) upon said defendant (or plaintiff) on
the tenth day of February, i897.
III. That deponent has fully and fairly stated the case in this cause
to Daniel Webster, Esquire, his counsel therein, who resides at Mar-
shall, and that he has a good and substantial cause of action (or de-
fense) upon the merits thereof, as he is advised by his counsel after
such statement made as aforesaid and verily believes to be true.
IV. That deponent has also fully and fairly disclosed to his said
counsel the facts which he expects and believes he shall be able to
prove by George Jones, who resides at (Here state place of residence), who
is a witness for this deponent therein, and that said George Jones is a
1. The name of the witness must be which are in his favor." Dean v.
stated. Md. Pub. Gen. Laws (1888), Turner, 31 Md. 58.
art. 75, 58. See supra, note I, p. 334. Md. Pub. Gen. Laws (1888), art. 75,
2. Residence of Witness. See supra, 59, provides that the court may ex-
note i, p. 334. amine the affiant in regard to the
3. Following the language of the materiality of the testimony, probability
statute. Md. Pub. Gen. Laws (1888), of procuring it, etc., and shall refuse
art. 75, 58. a continuance if the facts alleged are
4. Statement of Facts to be Proved. admitted by the adverse party.
See, generally, supra, note 7, p. 335. 5. Michigan. This affidavit is drawn
" Whenever a party seeks a continu- upder the provisions of Circuit Court
ance upon the ground of the absence of Law Rule No. 22, which rule also gov-
a material witness, it is his duty to state erns continuances in chancery cases by
in his affidavit fully and frankly, if he virtue of Chancery Rule No. 15. Con-
knows them, all the material facts suit also the annotations to Form No.
which the witness will prove, as well 6272, supra.
those which are unfavorable as those
350 Volume 5.
6276. ADJOURNMENTS. 6276.
material witness for this deponent in said cause, as he is advised by his
said counsel after such statement made as aforesaid and verily be-
lieves to be true.
V. That deponent cannot safely proceed to the trial of said cause
without the testimony of said George Jones, as this deponent is also
advised by his said counsel after such statement made as aforesaid
and verily believes to be true. 1
VI. That said witness has been duly subpoenaed, 2 and is absent
without deponent's consent, procurement or connivance.
VII. That deponent expects and believes that he will be able to
procure the attendance of said witness at the next term of this court,
or his testimony by commission.
VIII. That this application for continuance is not made for the pur-
pose of delay merely, but for the purpose of obtaining a fair and
impartial trial upon the merits. 3
John Doe (or Richard Roe).
Sworn and subscribed to before me \ti\sfirst day of March, i898.
(SEAL) Norton Porter, Notary Public,
Calhoun County, Michigan.
Form No. 6276. 4
New Jersey Supreme Court.
Richard Roe }
ads. [ In Tort.
John Doe. )
Essex County, ss.
Richard Roe, being duly sworn according to law upon his oath, says:
1. Expected Testimony. This form is that he is sick, the prospect of his re-
drawn for an affidavit on a first applica- covery, etc.
tion for continuance. On a second appli- 3. Motion Made After First Day in Term,
cation insert at the point indicated in the If the motion is made after the first
text a statement of " the facts which he day in term, a sufficient excuse must be
expects to prove by the absent witness" shown for the delay (Circuit Ct. Rule
(Circuit Ct. Rule No. 22); that is, " And No. 22). And in such case it would be
this deponent further says that he ex- prudent, if ndt necessary, to insert the
pects to prove by the said witnesses the excuse in the affidavit at this point,
following facts," proceeding then to For a form under a statutory provision
state the facts. requiring an excuse for laches see Form
In a Criminal Case. It was held in No. 6289.
People v. Burwell, 106 Mich. 27, which 4. New Jersey. There is no statute
appears to have been a first application, or rule of court in New Jersey prescrib-
that the motion was properly overruled ing the requisites of an affidavit for
because the affidavit did not state continuance. The form given in the text
what the defendant expected to prove is what is denominated in common-law
by the absent witnesses. See also Peo- practice the "common affidavit," which
pie v . Anderson, 53 Mich. 60. differs from a special affidavit in that the
2. Diligence to Secure Testimony. On latter contains a statement of the facts
a second application Circuit Court Rule expected to be proved by the witness.
No. 22 requires the applicant to " state The circumstances under which a
with particularity the diligence he has special affidavit is required are shown
used " to procure the attendance of the infra, note I, p. 352, note 3, p. 353,
witness; by which we understand that and it is believed that the practice there
the applicant should state every step laid down would be enforced in New
that has been taken and every known Jersey under like circumstances. Con-
circumstance which may explain the suit also annotations to Form No. 6272,
absence of the witness; as, for instance, supra.
351 Volume 5.
6277. CONTINUANCES AND 6277.
That he is the defendant in this cause. That issue was joined
herein on the third day of February, A. D. \W8. That George Jones,
who resides at Hackensack, in Bergen county, is a material witness for
this deponent in this cause, as he is advised by his counsel and verily
believes to be true. That said deponent cannot safely proceed to the
trial of this cause without the testimony of the said George Jones.
That this deponent has used due diligence to procure the attendance
of the said George Jones in that for the purpose of subpoenaing him this
deponent, on the fifth day of February, A. D. i8##, went to his dwell-
ing in Hackensack, and was informed that he had gone to Jersey City,
in the county of Hudson, and state of New Jersey, to which place this
deponent went on the same day, and was then told and believed it to
be true that said George Jones had gone away. That this deponent
cannot get any information as to the present whereabouts of said
George Jones, but is informed that he will return to his home in Hack-
ensack in a month. That this deponent expects to be able to procure
the attendance of the said George Jones at the first sittings of the
next term of this court.
Richard Roe (or John Doe).
Sworn and subscribed to before me this twelfth day of February,
A. D. i898. Abraham Kent, Justice of the Peace.
Form No. 62 77.*
\Supreme Court, Suffolk County.
John Doe, plaintiff,
against
Richard Roe, defendant.
State of New York, )
County of Suffolk. \ s
John Doe (or Richard Roe), 2 being duly sworn, saysrj 3
I. (Like paragraph I in Form No. 627%.)
1. New York and Pennsylvania Com- or where the circumstances are such as
mon Affidavit. In common-law prac- to cast suspicion on the good faith of
tice, which for the most part has always the application, a "special affidavit,"
prevailed in New York in applications so called, should be filed by the appli-
for continuances, the affidavit in sup- cant. 4 Encycl. of PI. and Pr. 884.
port of a first application, when there Doubtless a special affidavit might
are no suspicious circumstances, is de- properly be required in Pennsylvania
nominated the "common affidavit." under similar circumstances.
4 Encycl. of PI. and Pr. 884. In 2. Who may Make. Ordinarily the
Pennsylvania there is no statute pre- affidavit should be made by the party
scribing the requisites of an affidavit himself. Brooklyn Oil Works v. Brown,
for continuance, nor is there any uni- 7 Abb. Pr. N. S. (N. Y. Super. Ct.)382.
form practice on the subject. In some But an attorney may make the affidavit
courts an oral application by counsel is when it is made to appear that he has
deemed sufficient, while in others the personal knowledge of the facts. Gar-
affidavit is required; but it appears that field Nat. Bank v. Colwell, (Supreme
the common affidavit, as used in New Ct.) 28 N. Y. St. Rep. 723. See also
York, will suffice under ordinary cir- supra, note 3, p. 317, note i, p. 332.
cumstances on a first application. 3. For the formal parts of an affidavit
Special Affidavit. On a second or in Pennsylvania see the title AFFI-
subsequent application, in New York, DAVITS, vol. I, p. 587.
352 Volume 5.
6277. ADJOURNMENTS. 6277.
II. That issue was joined in the above entitled cause on the
day of , iB98.
III. That the above entitled cause was noticed for trial by the
plaintiff on the day of , i898.
[IV. That deponent has fully and fairly stated the case in this
cause to Robert McLean, Esq., his counsel therein, who resides at
Patchogue, in Suffolk county, state of New York, and that he has a
good 1 and substantial defense upon the merits thereof, as he is
advised by his counsel after such statement made as aforesaid and
verily believes to be true.] 1
V. That deponent has fully and fairly disclosed to his said counsel
the facts which he expects and believes he shall be able to prove by
George Jones, who resides at Babylon in said Suffolk county, and is a
material witness for this deponent in this cause, as he is advised by
his said counsel after such statement made as aforesaid and verily
believes to be true. 2
VI. (Like paragraph V in Form No. 6275.)
[Via. That deponent expects to prove by the said George Jones
the following facts (Here state the facts expected to be proved)?
That deponent believes the foregoing facts are true. 4 That
deponent cannot prove the same facts by the testimony of any other
witness. 5 ] 6
VII. That said George Jones is not in attendance, and [that this
deponent, for the purpose of subpoenaing him, went to his dwelling
in Babylon, in said Suffolk county, on the tenth day of March, i&98,
1. Paragraph IV is to be inserted cient. People v. Jackson, in N. Y. 362.
when the affidavit is by the defendant. In a criminal case the court said:
An affidavit of merits is necessary when "Whatever may be the ordinary prac-
the application is made by the defend- tice, I have no doubt that the strict rule
ant. Brooklyn Oil Works v. Brown, 7 requires the prisoner in every case to
Abb. Pr. N. S. (N. Y. Super. Ct.) 382. make a full disclosure of the names of
2. Materiality of Testimony. On the his witnesses, and of the facts he ex-
first application, when there is no cause pects to prove by them, though this
for suspicion that the object is delay, it strictness may very well be waived by
is sufficient to state that the testimony the district attorney or by the court, on
of the witness is material without setting application made, at the term when the
forth the facts which he is expected to indictment is found." People v. Krum-
prove. People v. Vermilyea, 7 Cow. (N. mer,4 Park. Cr. Rep. (Buffalo Super. Ct.)
Y.) 369; Ogden v. Payne, 5 Cow. (N.Y.) 217. See generally also, as to the suf-
15; Brooklyn Oil Works v. Brown, 7 ficiency of statement of expected testi-
Abb. Pr. N. S. (N. Y.) 382. The affi- mony, supra, note 7, p. 335 et seq.
davit must be positive in the averment 3. The principal feature that distin-
that the testimony is material. Brook- guishes the special affidavit from the
lyn Oil Works v. Brown, 7 Abb. Pr. N. common affidavit is that the special
S. (N. Y. Super. Ct.) 382, where the affidavit must state the facts which it
court said: "The practice now is to is expected the absent witness will tes-
swear that the defendant is advised and tify to or prove. Brooklyn Oil Works
believes the witness to be material." v. Brown, 7 Abb. Pr. N. S. (N. Y.
See also People v. Jackson, in N. Y. 362. Super. Ct.) 382. See also Onderdonk v.
In order to show the materiality of Ranlett, 3 Hill (N. Y.) 323.
the alleged absent testimony it must 4. Testimony believed to be true, see
appear by the affidavit that there is, in supra, note 2, p. 342.
fact, an absent witness. "Current 5. No other witness to same facts, see
rumor about '.he village" that there supra, note 2, p. 343.
was such a witness, whose name and 6. This paragraph should be inserted
whereabouts are unknown, is notsuffi- when the affidavit is a special affidavit.
5 E. of F. P. 23. 353 Volume 5.
6278.
CONTINUANCES AND
6278.
and was informed that he had gone to Huntington, in said county, to
which place this deponent went on the same day, and was then and
there told, and believed it to be true, that said George Jones\&A gone
to Connecticut, but intended to return to his home in Babylon in
about a month.] 1
[Vila. That deponent has used due diligence to procure the at-
tendance of the said George Jones in that he {Here state what dili-
gence has been used}.} 2
VIII. That said George Jones is not absent by the consent, pro-
curement or connivance of the deponent. 3
IX. That deponent expects and believes that he can procure, and
intends to procure, the attendance of the said George Jones as a wit-
ness in this cause at the next circuit appointed to be held at River-
head on the thirdly of October, i8. 4
X. That this application is not made for delay, but that justice
may be done. 5
John Doe (or Richard Roe).
[Sworn to before me this seventeenth day of March, iS98.
Calvin Clark,
County Clerk of Suffolk County.] 6
Form No. 6278.'
1. If the witness has been subpoe-
naed, state, in lieu of the averment in
the text, " but that he was duly subpoe-
naed on \hetenth day of March, i%g8."
It has been held, however, that the
common affidavit need not state the
date when the witness was subpoenaed
unless the omission be made a ground
of objection. Hooker v. Rogers, 6
Cow. (N. Y.) 577-
2. Paragraph Vila should be inserted
instead of paragraph VII when the
affidavit is a special affidavit.
The affidavit must show that due dili-
gence has been used to procure the at-
tendance of the witness. Brooklyn
Oil Works v. Brown, 7 Abb. Pr. N. S.
(N. Y. Super. Ct.) 382. For sufficient
averments of diligence see Hooker v.
Rogers, 6 Cow. (N. Y.) 577, where the
witness was sick in bed; Kelly v. Weir,
19 Misc. Rep.- (N. Y. City Ct.) 366;
Michelsen v. Spies, 83 Hun (N. Y.)
509; Nixen v. Hallett, 2 Johns. Cas.
(N. Y.) 218.
For insufficient diligence shown see
Keller v. Feldman, 29 Abb. N. Cas. (N.
Y. C. PI.) 426; Fake v. Edgerton, 6
Duer (N. Y.) 653; Hays v. Berryman, 6
Bosw. (N. Y.) 679, where no special
reason was assigned for not taking the
deposition of the witness and thus
Preventing the loss of his testimony,
ee also supra, note 5, p. 339.
The special affidavit must be more
minute than the common affidavit in
stating the facts and circumstances on
which the application rests with re-
spect to diligence in obtaining the tes-
timony of the absent witness. People v.
Vermilyea, 7 Cow. (N. Y.) 369.
3. Witness not absent by consent, etc.,
see supra, note 5, p. 345.
4. Expectation of Procuring testimony.
The affidavit should state that appli-
cant expects to procure the testimony
of the absent witness by the time to
which it is sought to defer the trial.
People v. Vermilyea, 7 Cow. (N. Y.)
369; Brown v. Moran, 65 How. Pr. (N.
Y. C. PI.) 349; Brooklyn Oil Works v.
Brown, 7 Abb. Pr. N. S. (N. Y. Super.
Ct.) 382. See also Onderdonk v. Rau-
lett, 3 Hill (N. Y.) 328; also, generally,
with respect to the statement of expec
tation of procuring testimony, see supra,
note 8, p. 345. And if the facts alleged
show that there is no reasonable ground
for the expectation a continuance
should be refused. People v. Jackson,
in N. Y. 362.
5. Application not made for delay, etc.,
see supra, note 7, p. 347.
6. See supra, note 3, p. 352.
7. North Dakota. In civil cases, con-
tinuances are regulated by District
Court Rule No. XXXII (3 N. Dak.
xxxi), which provides that "All affi-
davits for continuances on account of
the absence of a material witness or ma-
354
Volume 5.
6279. ADJOURNMENTS. 6279,
State of North Dakota, \ In the District Court,
County of Burleigh. \ ss> Fifth Judicial District.
John Doe, plaintiff,
against
Richard Roe, defendant.
State of North Dakota, \
County of Burleigh. \
John Doe (or Richard Roe), being first duly sworn, says:
I. (Like paragraph I in Form No. 6272.)
la. That affiant has a valid cause of action or defense herein, to
wit (If ere state the facts showing a valid cause of action or defense, as
the case may be).
II. (Like paragraph II in Form No. 6272.)
III. (Like paragraph III in Form No. 6272.)
IV. That affiant expects and believes that the said George Jones,
if he were present and orally examined by the court, would testify as
follows: (State expected testimony.}
V. That affiant has used due diligence to prepare for trial and to
procure the testimony of the said George Jones in that (Here state the
nature and kind of diligence used).
VI. That affiant believes said testimony is true.
VII. That the same facts cannot satisfactorily be shown by any
other available evidence.
VIII. (Like paragraph VIII in Form No. 6272.)
IX. (Like paragraph IX in Form No. 6272.)
X. (Like paragraph X in Form No. 6272.)
Subscribed and sworn to before me this fifth day of March,
1 897.
Calvin Clark, Clerk of the District Court.
Form No. 6279.'
Supreme Court.
Common Pleas Division.
Providence, Sc.
John Doe }
against [ No. 2102.
Richard Roe. )
I, John Doe (or Richard Roe) on oath declare and say:
terial evidence shall show to the satis- orally examined in court, or the nature
faction of the court all facts therein of any document wanted and where the
stated, that the applicant has a valid same may be found, and that the same
cause of action or defense, in whole or facts cannot satisfactorily be shown by
in part, and if in part only he shall any other available evidence."
specify particularly to what part, and In criminal cases, continuances are
shall also show as aforesaid that he governed by the rule of court above
has used due diligence to prepare for quoted, by virtue of N. Dak. Rev.
trial, and the nature and kind of dili- Codes (1895), 8141.
gence used, and the name and resi- Consult also the annotations to Form
denceof the absent witness or witnesses, No. 6272, supra.
and what he expects and believes 1. Rhode Island. This affidavit is
such witness (or witnesses) would drawn under the provisions of Rules
testify to were he or they present and of Practice No. 10 et seq. (15 R. I. 634
855 Volume 5.
6280. CONTINUANCES AND 6280.
I. (Like paragraph I in Form No. 6272.)
II. That I cannot safely proceed to the trial of this cause at the
present term of this court without the testimony of George Jones,
who resides at (Here state place of residence) and is a material witness
in my behalf, and is now absent.
III. Like paragraph IV in Form No. 6272.)
IV. The endeavors which have been used to procure the attend-
ance or depositions of the said George Jone s are as follows: (Here
state the endeavors?)
V. (Like paragraph VI in Form No. 6272, adding) and the grounds
of my expectation that the said George Jones will prove the said facts
are that (Here state grounds).
VI. That I know of no other person by whom I can prove the
aforesaid facts which I expect the said George Jones to prove.
VII. (Like paragraph VIII in Form No. 6272.)
VIII. That I expect to procure the attendance or deposition of
the said George Jones at the next term of this court, because (State
reasons).
IX. (Like paragraph X in Form No. 6272.)
John Doe (or Richard Roe).
Subscribed and sworn to before me at Harrington, in the county of
Bristol and state of Rhode Island, this tenth day of March, i898.
George L. Cooke, Notary Public.
Form No. 6280.'
The State of 'South Carolina, \ j h c f Common pl
County of Chester. J
John Doe, plaintiff, )
against
Richard Roe, defendant. )
The State of South Carolina, \
County of Chester. \
Comes now John Doe (or Richard Roe) and on oath says:
I. (Like paragraph I in Form No. 6272.)
II. (Like paragraph II in Form No. 6272.)
III. (Like paragraph III in Form No. 6272.)
IV. That affiant believes the said George Jones, if he were present,
would testify to the following facts (Statement of facts).
V. That affiant has used due diligence to procure the testimony of
the said George Jones in that he caused a subpoena to be issued for
the saidy^^^j, which was duly served, and is attached hereto and
made a part hereof, together with the sheriff's return of service
indorsed thereon.
et seg.) Consult also the annotations to sary degree of sickness to warrant the
Form No. 6272, supra. motion." Rules of Practice, No. 17
Absence on Account of Sickness. "If (15 R. I. 635).
the continuance be asked on account 1. South Carolina. This affidavit is
of the sickness of a party or witness, it drawn under the provisions of Circuit
must be accompanied by a sworn certifi- Ct. Rule No. 27. Consult also the an-
cate of a practicing physician, in good notations to Form No. 6272, supra.
standing, of the fact, kind, and neces-
356 Volume 5.
6281. ADJOURNMENTS. 6282.
VI. {Like paragraph VI in Form No. 6272.)
Via. That the said George Jones has repeatedly told the affiant
that he would testify to the foregoing facts under oath.
VII. That the same facts cannot be proved by any other person.
VIII. (Like paragraph VIII in Form No. 6272.)
IX. That affiant expects to procure the attendance of the said
George Jones as a witness at the next term of this court.
X. That the affiant's motion for a continuance is not intended for
delay, but is made solely because he cannot go safely to trial with-
out the testimony above set forth.
John Doe (or Richard Roe).
Sworn to before me this tenth day of March, iS98.
(SEAL) Abraham Kent, Magistrate.
Form No. 62 Si. 1
John Doe
against
Richard Roe.
I, John Doe (or Richard Roe), on oath depose and say:
I. (Like paragraph I in Form No. 6272)
II. (Like paragraph II in Form No. 6272)
III. (Like paragraph III in Form No. 6272.)
IV. That the substance of the testimony I expect the said George
Jones to give is as follows (Here state the substance of the testimony).
John Doe (or Richard Roe).
Washington County, ss.
At Montpelier, in said county, this fifth day of March, i898, per-
sonally appeared the said John Doe (or Richard Roe), and made
oath to the truth of the foregoing affidavit by him subscribed.
Before me:
Abraham Kent, Justice of the Peace.
Form No. 628 2. *
Circuit Court, Milwaukee County.
John Doe, plaintiff, }
against v
Richard Roe, defendant. )
State of Wisconsin, \
County of Milwaukee, j
John Doe (or Richard Roe), being duly sworn, says:
I. (Like paragraph I in Form No. 6272.)
II. (Like paragraph II in Form No. 6277.)
1. Vermont. Supreme Ct. Rule No. 2. Wisconsin. The provisions regu-
IX provides that " if the motion (for lating continuances, both as to the
continuance) is founded on the absence motion and affidavit for the same, are
of a witness, the affidavit shall state prescribed by Circuit Ct. Rule No. XX
the name and residence of the witness, (Sanb. & B. Anno. Stat. Wis. , 2845,
and the substance of the testimony ex- note). Consult also supra. Form No.
pected from him." Consult also the 6272, and notes thereto,
annotations to Form No. 6272, supra.
357 Volume 5.
6283. CONTINUANCES AND 6283.
III. (Like paragraph II in Form No. 6275 or paragraph III in
Form No. 6277.)
IV. {Like paragraph III in Form No. 6275.)
V. (Like paragraph IV in Form No. 6275.)
VI. (Like paragraph V in Form No. 621 '5.)
VII. That this deponent expects to prove by the said George
Jones the following facts (State the facts'),^ and that the grounds of
his expectation that he can prove the foregoing facts by the said
George Jones are {State grounds of expectation).
VIII. {Like paragraph VI in Form No. 6272.)
IX. That no other evidence is at hand or witness in attendance,
or known to this deponent, whose testimony could have been pro-
cured in time, upon whom this deponent can safely rely to prove the
particular facts above stated, which this deponent expects and
believes can be proved by the said George Jones, or to maintain the
issue in respect thereto on the part of this deponent.
X. That this deponent has used due diligence and endeavors for
the purpose of procuring the testimony of the said George Jones in
that this deponent (Here state the endeavors used). 2
XI. {Like paragraph VIII in Form No. 6272).
XII. That deponent expects and believes that he will be able to
procure the attendance of the said George Jones at the next term of
this court.
XIII. That this application for continuance is not made for the
purpose of delay merely, but that justice may be done and a fair
and impartial trial be had upon the merits.
John Doe (or Richard Roe).
State of Wisconsin, \
County of Milwaukee, j
The above named John Doe (or Richard Roe) before me person-
ally appeared and made oath that the foregoing affidavit subscribed
is true. On this fifth day of March, i898.
Abraham Kent, Justice of the Peace
in and for Milwaukee County, Wisconsin.
b. Precedents. 3
1. Expectation of Proving. In Wins- ton Spa Bank v. Marine Bank, 16 Wis.
low v. Bradley, 15 Wis. 394, the absent 135.
witness was a defendant in the suit, 3. Kentucky. In Morgan v. Com.,
and it was held that the affidavit must 14 Bush (Ky.) 106, the defendant
" disclose fully the precise facts or the was indicted for the murder of one
substance of the testimony expected to Best. He was brought to trial at
be proven by such party " and a state- the first term after his arrest and
ment that he was a " material witness," commitment to jail, and on the call-
and that the facts constituting the de- ing of the cause, March 21, 1878, to
fense were within his personal knowl- which day it had been postponed when
edge was not sufficient. See also first called on March 18, he filed his
Ballston Spa Bank v. Marine Bank, 16 affidavit for a continuance for the fol-
Wis. 135. lowing among other reasons: ''On
2. Due Diligence Used. In Andrews v. the i6th day of March, iS/c?, he had
Elderkin, 24 Wis. 531, the continuance Robert Collins summoned as a witness
was refused because the affidavit did in this case, and without whom he can-
not show due diligence. See also Balls- not safely go into trial; said Collins is
358 Volume 5.
6283.
AD JO URNMENTS.
6283.
not in attendance at this term of the
court, and was not in attendance when
the case was called on Monday last, and
on that day affiant obtained an attach-
ment against said Collins, both to this
county and EstiM county, where said Col-
lins resides. The attachment to Madison
county was placed in the hands of the
sheriff of said county to be served, and
the one to Estill county was sent by
mail to the sheriff of Estill county, but
neither of said attachments has been
returned executed. He can prove by
Robert Collins that he was standing
seven or eight feet from Best at the
time he was killed, and that he knows
that the defendant Morgan did not kill
Best, but that Best was shot and killed
by Andrew Conn; that witness saw Conn
present his pistol at Best, saw the
smoke rise from the pistol, and heard
the report, and at the report of the pis-
tol saw Best throw up his hands, reel a
few steps and fall; and he knows that
Best was killed by the shot fired by
Conn and not by the accused. Best
threw up his hands, reeled and fell
when Conn fired, and then Conn put up
his pistol, and, after the excitement,
stepped behind a tree and reloaded his
pistol; and will prove that at the time
Best was shot the defendant Morgan and
Jerry Higgins were in a scuffle over a
pistol.' His affidavit also stated that
he could prove by Mary Sigman that
she was present when Best was killed,
and that she saw a man run round the
crowd where Best was standing and
level his pistol and fire, when Best stag-
gered a few steps and fell; she is of
opinion that the man that fired the pis-
tol was either Andrew Conn or Andrew
Cummins, but she is certain it was not
the defendant Morgan. He stated that
he obtained an attachment against this
witness also on the first day of the
term, and placed it in the hands of the
sheriff, but the same had not been exe-
cuted. He swore further that his mo-
tion for a continuance was not made
for delay, but that justice might be
done him, and a fair trial of his case
had." It was held by the court of ap-
peals that the affidavit disclosed suffi-
cient diligence, that the evidence was
material, and that it was reversible
error to overrule the motion for con-
tinuance.
Nevada. In Choate v. Bullion Min.
Co., i Nev. 73, the tatement of the
case is as follows: " The affidavit on
motion for continuance in this case
shows that affiant is the superintendent
of the Bullion Mining Company, the
defendant; that defendant could not
safely proceed to trial during that term
of the court because of the absence of
one M. E. Letts, a material witness on
the part of defendant; that Letts left
the territory of Nevada for the state of
California in the morKh of November,
1862, and left said state in March, A. D.
1863; that immediately after arriving
in said state he, the said Letts, in com-
pany with others, started to Lower
California on a prospecting tour, and
had been absent ever since; that im-
mediately after this suit was com-
menced the affiant wrote to different
places in order to ascertain his where-
abouts so that his deposition might be
taken, but that all his efforts to ascer-
tain his whereabouts had failed; that
said Letts was intending to return to
Virginia City, and affiant believed that
he would so return before the next
term of the court; that affiant had writ-
ten to every place where said Letts
might be expected to get his letters,
yet that he had received no answer;
that Lett's business is such that affiant
knew he would return before many
months. The affidavit also stated the
facts which defendant expected to
prove by said witness; that affiant knew
of no one else by whom the same facts
could be proved, and that his testimony
could be obtained by the next term of
the court." The affidavit was held
sufficient, and the refusal of a contin-
uance reversible error.
Virginia The Form. In Welch v.
Com., 90 Va. 319, the affidavit for con-
tinuance, omitting the formal parts,
was as follows:
"John Welch, the defendant, being
first duly sworn, says that upon the
trial of the above mentioned indictment
he desires to introduce Sidney Hoff-
heimer as a witness in his behalf; that
said Hoffheimer was present in the city
of Norfolk at the time of the occur-
rences which constitute the subject of
said indictment; that he is a material
witness for the defendant, and can
prove facts not within the knowledge
of any other witness procurable by the
defendant; that this defendant has
caused to be issued subpoenas for the
attendance of this witness, returnable
to the first day of this term and to this
day, directed to the sergeant of the city
of Norfolk, which subpoenas have been
returned "Not found"; that the said
witness has not been kept from attend-
ance by the solicitation or procurement
359
Volume 5.
6283.
CONTINUANCES AND
6283.
Form No. 6283.
(Precedent in Blige v. State, 20 Fla. 743. ) J
In the Circuit Court, Sixth Circuit of Florida, in and for Hills-
borough County, ^a//Term, A. D. i883:
The State of Florida, )
vs. V Assault with intent to murder.
William Blige. )
Now, on this 10th day of October, A. D. i883, comes the defendant,
William Blige,' 2 ' who being duly sworn, says that Thomas Whiteheadzn&
Nixon Brou>n are material witnesses for his defense; that he expects to
of this defendant, or by any connivance
of his, and that he has used every
effort in his power, in addition to the
issuing of process as aforesaid, to se-
cure his attendance."
It was held reversible error to refuse
a continuance on this affidavit.
For other cases where a refusal was
held to constitute reversible error see
Anthony v. Lawhorne, I Leigh (Va.) i;
Hook v. Nanny, 4 Hen. & M.(Va.) 157;
Higginbotham v. Chamberlayne, 4
Munf. (Va.) 547; Vaught v. Rider, 83
Va. 659; Walton v. Com., 32 Gratt.
(Va.) 855; Phillips v. Com., 90 Va. 401;
Carter v. Wharton, 82 Va. 264; Myers
v. Trice, 86 Va. 835.
Facts to be Proved and Materiality
Thereof. See Wormeley -v. Com., 10
Gratt. (Va.) 658; Harman v. Howe, 27
Gratt. (Va.) 676; Harris v. Harris, 2
Leigh (Va.) 584. See also supra, note
7, p. 335 et seq.
No Other Witness to the Same Facts.
See Mull's Case, 8 Gratt. (Va.) 695.
See also supra, note 2, p. 343.
Diligence to Obtain Testimony. See
Carter v. Wharton, 82 Va. 264, and
supra, note 5, p. 339.
For cases showing insufficient dili-
gence see Deanes v. Scriba, 2 Call (Va.)
419; Hurd v. Com., 5 Leigh (Va.) 715;
Holtf. Com., 2 Va. Cas. 156; Deford v.
Hayes, 6 Munf. (Va.) 390; Milstead v.
Redman, 3 Munf. (Va.) 219; Com.
v. Mister, 79 Va. 5; Early v. Com., 86
Va. 921; Richmond, etc., R. Co. v.
Humphreys, 90 Va. 425; Norfolk, etc.,
R. Co. -v. Shott, 92 Va. 34; Baltimore,
etc., R. Co. v. Wightman, 29 Gratt. (Va.)
431; Wormeley v. Com., 10 Gratt. (Va.)
683.
1. Florida. The application for con-
tinuance was denied and the supreme
court in awarding a new trial said:
"The affidavit upon which a motion
for a continuance was based comes up
to the rule as laid down in Harrell v.
Durrance, 9 Fla. 490, and in Gladden v.
State, 12 Fla. 562. The application is
addressed to the sound discretion of
the court, and ordinarily such discretion
will not be interfered with by the appel-
late court. But when the court can
see that the rights of the party may
have been jeopardized and the rule in
regard to the application had been
fully complied with, and there had
been no previous delay, and especially
when the application is made on the
very day of the finding of the indict-
ment, this court will control such dis-
cretion. We think a continuance
should have been granted." (Citing
McNealy v. State, 17 Fla. 198; Sanford
v. Cloud, 17 Fla. 532; Green v. King,
17 Fla. 452; State v. Wood, 68 Mo. 444;
State v. Hagan, 22 Kan. 490.)
In Civil Cases. The requisites of an
affidavit for continuance for the term
in a civil case are laid down in Harrell
v. Durrance, 9 Fla. 500, followed in
Sanford v. Cloud, 17 Fla. 543, and are
substantially the same as in criminal
cases. See Gladden v. State, 12 Fla.
562; Green v. King, 17 Fla. 452.
For a form of affidavit held insuffi-
cient see Sanford v. Cloud, 17 Fla. 543,
commented on in Blige v. State, 20 Fla.
743-
In Criminal Cases. In Bryant v.
State, 34 Fla. 294, the court said: " An
affidavit of this character, on account of
the greater temptation to delay, should
be more closely scrutinized in a criminal
than in a civil case." Citing Gladden
v. State, 12 Fla. 562. To which may
be added Hall v. State, 35 Fla. 535, and
Ballard v. State, 31 Fla. 282.
2. Who may Make. In Sanford v.
Cloud, 17 Fla. 543, the affidavit was
made by defendant's agent, the ground
being defendant's absence, and that
his testimony was desired on his own
behalf. Consult also annotations to
Form No. 6272, supra, and note 3,
P- 317.
360
Volume 5.
6283. ADJOURNMENTS. 6283.
prove by said witnesses 1 that about fifteen or twenty minutes before
the difficulty took place in which he is charged with assaulting the
said Samuel J. Ingraham, [that] the said Ingraham assaulted the de-
fendant on board the steamship Lizzie Henderson, on which defend-
ant was employed, cursed and abused defendant, threatened his life,
and attempted to throw defendant overboard, and was prevented
from doing so by one of the witnesses, and that this* was done with-
out any sufficient provocation on the part of the defendant; that as
soon as the bill of indictment was returned against defendant, his
counsel filed a praecipe for said witnesses and tendered the fees for
issuing subpoenas; 2 that said witnesses are both employed on board
the said steamship Lizzie Henderson, which steamship had sailed be-
fore the finding of said bill of indictment; and affiant is informed
and believes that said witnesses could not be gotten here during the
present term of the court; that they are both residents of this
county, and affiant expects to have them present at the next term
of court; that they are not absent by his consent or procurement,
directly or indirectly given; 3 that he cannot safely go to trial with-
out their testimony, or that of at least one of them; that he has no
other witness by whom he can prove these facts, and that this appli-
cation is not made for delay only ; 4 wherefore a continuance is prayed.
[ William Blige.
Sworn to and subscribed before me, this tenth day of October, A. D.
(SEAL) Calvin Clark, Clerk of the Circuit Court.] 5
1. Statement of Expected Testimony and that affiant exercised any due diligence
Materiality Thereof . In Hall v. State, 35 in having the subpoena issued and
Fla. 534, the affidavit stated that the delivered to the proper officer in time
affiant expected to prove certain threats, to have it served before the court met."
but did not expressly state that he Consult also annotations to Form No.
expected to prove them by the absent 6272, supra.
witnesses. In pronouncing the affidavit Date of Issuance of Subpoena. It
insufficient the supreme court took would be advisable to state upon what
notice of the circumstance that it was date the subpoena was issued, for upon
" not even stated that the absent wit- close scrutiny by the court an omission
nesses would swear to such threats." in that particular might seriously affect
Consult also annotations to Form No. the application. See Gladden v. State,
6272, supra. 12 Fla. 571.
2. Statement of Diligence Used. In 3. Witness Not Absent by Consent, etc.
Bryant v. State, 34 Fla. 295, the court In Bryant v. State, 34 Fla. 291, the affi-
criticised the affidavit because, although davit was held insufficient because it
it stated that a subpoena had been is- did not allege that the witness was ab-
sued for the witnesses named, it con- sent without the consent of the appli-
tained no statement of the inability of cant directly or indirectly given. Con-
the sheriff to find them. suit also annotations to Form No.
In Hall v. State, 35 Fla. 534, the affi- 6272, supra.
davit was held insufficient, the court say- 4. Application Not Made for Delay.
ing: " The affidavit made when the trial In adverse comments upon an affidavit
was had states that affiant had caused a in Ballard v. State, 31 Fla. 284, the
subpoena to issue for absent witnesses court said: " It is not improper to call
named, but the subpoena had not been attention to the fact that the affidavit
sent by the officer; and also that ' some of does not even state that the application
said summonses have been returned for continuance was not ' made for
not found.' When the subpoena was delay only.' " See also note 7, p. 347.
issued is not stated, nor does it appear 5. The court said that "This affidavit
361 Volume 5.
6284.
CONTINUANCES AND
6284.
Form No. 6284.'
(Precedent in Cunneen v. State, 95 Ga. 330.)*
[The State of Georgia } IQ tfae Cfy Court Qf Savannah ^ Georgia ^
against v November Term, i80
JohnJ. Cunneen. )
Georgia, Chatham County, ss.
JohnJ. Cunneen* being duly sworn, upon his oath deposes and
says, that he is the defendant in the above entitled cause;] 4 that
W. J. O 'Dell is a witness in behalf of defendant, and is absent; that
he has been subpoenaed; 5 that he resides in the county where the
above case is pending; that his testimony is material; 6 that such
witness is not absent by the permission, directly or indirectly, of this
applicant; 7 that he expects that he will be able to procure the testi-
mony of such witness at the next term of the court; 8 that the
application for a continuance is not made for the purpose of delay, 9
but to enable him to procure the testimony of such absent witness;
that there is no other witness by whom he can prove the same facts; 10
was subscribed and sworn to before the
clerk of the court on the loth day of
October, 1883."
1. Georgia. 3 Ga. Code (1895),
963; 2 Ga. Code (1895), 5129, pro-
vides that "it must be shown to the
court," etc., but does not expressly re-
quire an affidavit, though in practice
the application is commonly supported
by affidavit. The showing may be by
parol. See Glover v. State, 89 Ga. 392;
Williams v. State, 69 Ga. 24; Huffman
v. State, 95 Ga. 469.
A counter-showing to motion for con-
tinuance is allowed in all civil and
criminal cases in the discretion of the
presiding judge. Williams v. Stoll, 69
Ga. n; Waldrup v. Maxwell, 84 Ga. 113;
Horn v. State, 62 Ga. 362. And particu-
larly, as to the proper scope of a coun-
ter-showing, see Johnson v. State, 65
Ga. 98; Pyburn v. State, 84 Ga. 195.
See also Form No. 6308, infra.
2. For another available precedent
see Johnson v. Martin, 28 Ga. 184.
3. Who may Make. In Fogarty v.
State, 80 Ga. 450, it was held that the
affidavit should be made by the party
himself unless some reason is shown
why he cannot make it. See also 2 Ga.
Code (1895), 4417, and supra, note 3,
p. 317, note i, p. 332.
4. The words and figures within [ ]
are not found in the reported case, but
are added to make the form com-
plete.
5. Diligence Used. It must be shown
"that he (witness) has been subpoe-
naed." 3 Ga. Code (1895), 962; 2 Ga.
Code (1895), 5129. But in Pyburn v.
State, 84 Ga. 193, where the defendant
showed that he had caused a subpoena
to be put in the hands of an officer for
a material witness who lived within
the jurisdiction of the court and was
temporarily absent from home in an-
other state, the refusal of the con-
tinuance was held to be reversible
error. As to the diligence in procuring
and serving a subpoena, see Jones v.
Rome Grocery Co., (Ga. 1896) 24 S. E.
Rep. 959; Glover z/. State, 89 Ga. 391;
Harris v. State, (Ga. 1896) 24 S. E.
Rep. 145; Thomas v. State, 94 Ga. 484;
Smith v. State, 97 Ga. 352. Consult
also annotations to Form No. 6272,
supra.
6. Materiality of Evidence. If it ap-
pears that the expected evidence is
immaterial, continuance is properly
denied. Robson v. State, 83 Ga. 169.
Consult also annotations to Form No.
6272, supra.
7. Absence without permission of appli-
cant must be shown. Collins v. State,
78 Ga. 87. Consult also annotations
to Form No. 6272, supra.
8. That applicant expects to procure the
attendance of the witness at the next
term must be shown. Collins v. State,
78 Ga. 87. Consult also annotations
to Form No. 6272, supra.
9. That application is not made for
delay must be shown. Farmer v.
State, 95 Ga. 498. Consult also anno-
tations to Form No. 6272, supra.
10. Averment of inability to prove the
same facts by other witnesses present
362
Volume 5.
6285.
ADJOURNMENTS.
6285.
and that deponent expects to prove by said absent witness that 1
deponent did not keep, maintain or carry on a scheme for the hazard-
ing of money or other valuable thing, -called a policy-lottery; that
the said witness has been tried and found guilty of carrying on the
selfsame scheme or device for which this defendant has been indicted
or accused; that said witness has full knowledge of the facts and all
attending circumstances; that he knows that the said'scheme was not
and is not kept, maintained or carried on by this defendant; that said
witness is expected to testify that this defendant never has had any
connection with the keeping, carrying on or maintaining said scheme
or device.
Defendant further says that he is informed and believes that the
reason of the absence of said witness is on account of [his] illness,
and appends as part of this affidavit the certificate of Dr. R. J. Nunn.
Defendant does swear that said witness was sick, and that he is absent
from the city. 2
[John J. Cunneen.
Sworn and subscribed in open court November 14th, i894-
Calvin Clark, Clerk.] 3
Form No. 6285.
(Precedent in Wade v. Halligan, 16 111. 507.)*
[State of Illinois,
La Salle Circuit Court,
Thomas J. Wade )
ads. [ May Term,
Patrick Halligan. )
State of Illinois, \ -, .
. \ SS-J
\
t, j
La Salle County.
is not required by the Georgia code;
nevertheless, the courts hold it to be
necessary. Anderson v. State, 72 Ga.
100. See also Huffman v. State, 95 Ga.
469. Consult also annotations to Form
No. 6272, supra.
1. Facts expected to be proved by wit-
ness must be stated. 3 Ga. Code (1895),
962; 2 Ga. Code (1895), 5129.
Consult also annotations to Form
No. 6272, supra.
2. Certificate of Physician. In the
statement of the case it is said "at-
tached to this affidavit was a statement
signed by R. J. Nunn, M. D., to the
effect that ' W. J. O'Dell is ill with
rheumatism and is out of the state for
treatment." This was dated two days
before the date of defendant's affidavit,
and does not appear to have been
sworn to."
As to the certificate of physicians, see
Form No. 6305, infra.
3. The words and figures within [ ]
are not in the reported case, but are
added to make the form complete.
4. This was a proceeding by a land-
lord against his tenant by distress. It
was held that the court erred in refus-
ing a continuance on this affidavit.
Other Precedents. In Searls v. Mun-
son, 17 111. 558, the affidavit for continu-
ance, omitting the formal parts, is as
follows: " William S. Searls, of said
county, being duly sworn, doth depose
and say, that he is the defendant in the
above entitled cause; that he cannot
now safely proceed to the trial of said
cause on account of the absence from
said county of one Jeremiah Thorn, who
is a material witness for said defendant,
upon .the trial of said cause, and who
resides in the state of Wisconsin; that
the said witness left Waukegan last
night for his home in Wisconsin, where
he was called without any notice
sufficient to enable this deponent to
take his deposition, on account of sick-
ness in his family; and that this
deponent expects and verily believes
he shall be able to prove by said wit-
ness that this deponent paid to said
363
Volume 5.
6285.
CONTINUANCES AND
6285.
Thomas J. Wade?- being first duly sworn, saith on oath, that Conrad
Birkell, T. D. Brewster, and C. A. Holmes, and John Hoffman, and
Henry Fessler, who now reside in La Salle county, Illinois? are mate-
Francis F. Munson the sum of two hun-
dred dollars, to apply upon the note
sued upon in this case, and that said
Munson then agreed to indorse it upon
the note sued upon in this case, which
said Munson has not done. And this
deponent further says, that said two
hundred dollars form a good and valid
set-off to said plaintiff's cause of action;
was paid previous to the commence-
ment of this suit, and that he does not
now know of any other person by
whom this deponent can prove the
same facts. And further, that this
deponent was ready for trial of said
cause yesterday, at which time said
witness could be had, but that he is not
now, for the reason that said witness
has gone out of the state, and out of the
reach of this deponent. And further,
that said witness was yesterday in
attendance on this court, at the request
of this deponent, as a witness in this
cause, and that this deponent did not
know that said witness was going
away until he had started on his way,
and when it was too late for this
deponent to get a subpoena for said
witness, and that said witness was sent
for on account of the sickness of his
family; and that this deponent verily
believes that he can produce said wit-
ness at the next term of this court, as a
witness herein; and that said sum of two
hundred dollars is over and above any
and all sums indorsed upon said note;
and that this application is not made for
delay, but that justice be done; and
that this deponent has used due dili-
gence and every manner to be ready
for a trial of this cause at this term of
said court, and the not being ready is
not his fault." In this case the court
held that this " affidavit was sufficient
in every material part, and the cause
should have been continued."
In Adams v. Colton, 3 111. 72, an ac-
tion of assumpsit in which the defend-
ant pleaded general issue with notice
of set-off, it was held that the affidavit
was sufficient, which was, omitting the
formal parts, as follows: "K.E.W.
Adams, being duly sworn, on oath,
says, that Joel Jenks is an important
witness, on the part of the above
defendant, in the trial of the above
cause, and that he cannot safely pro-
ceed to trial without his testimony;
and that he expects to prove by said
Jenks that said plaintiff was to give
said defendant f/j'o for one-half of the
claim mentioned in said defendant's
account of set-off; and this deponent
further says that a subpoena was issued
to the sheriff of De Kalb county, in
which Jenks had formerly been resid-
ing, and this deponent is now informed
by the coroner of said county that
there is no sheriff in said county, and
that he, said coroner, received the said
subpcena and made search for said
Jenks, but could not find him, he hav-
ing removed from said county, which
was unknown to said deponent. And
this deponent says he knows of no
person whose attendance can be pro-
cured at this term of the court by whom
he can prove said facts; and this de-
ponent further says, that he expects
to be able to procure his attendance
at the next term. And this applica-
tion is not made for delay, but that
justice may be done."
For other forms on which there was
no direct ruling by the supreme court,
but which were probably sufficient, see
Fulton County v. Mississippi, etc., R.
Co., 21 111.349; Graffs. Brown, 85 111. 91;
Schultz v, Plankinton Bank, 141 111.
118.
1. Who may Make Affidavit. ' ' The mo-
tion shall be grounded on the affidavit of
the party so applying or his authorized
agent." Starr & C. Anno. Stat. 111.
(1896), p. 3036, par. 43 (Prac. Act, c.
i io, 43)-
The motion may be supported by the
affidavit of the party's attorney. Lock-
hart v. Wolf, 82 111. 38, where the court
said that McCreary -v. Newberry, 25
111. 496, does not decide that the affi-
davit is objectionable if made by the
attorney.
A motion supported only by the affi-
davit of one who is not a party to the
suit nor his authorized agent will be
overruled. School Dist. No. 2, 'etc., v.
Hentz, 57 111. App 648.
2. Name and Besidence of Witness.
The affidavit must state the place of
residence of the witness, or if that is
not known it must show that due dili-
gence has been used to ascertain the
same, and that if further time is given
his place of residence can be ascer-
tained. Starr & C. Anno. Stat. 111.
364
Volume 5.
6285.
AD JO URNMENTS.
6285.
rial witnesses for affiant on the trial of this cause, and who have
each been duly subpoenaed to attend this court, as witnesses, for
affiant in this case. 1 Affiant expects and believes he can prove by
(1896), p. 3036, par. 43 (Prac. Act, c.
no, 43). Rev. Stat. 111. of 1845, p.
4'5. $ X 3t required that the name of
the witness should be stated as well as
his residence.
The affidavit must state the residence
of the witness either positively or by
fair inference. " This is indispensable
as connected with his identification
and diligence in obtaining his attend-
ance." Lee v. Quirk, 20 111. 395.
In Trask v. People, 151 111. 527, the
court said: "The affidavit fails to
state the residence of the witnesses, as
required by statute, and on account
of this defect, if for no other, the court
was justified in overruling it."
In Searls v. Munson, 17 111. 558, the
court said: " The name and residence
of witness are given sufficiently, and the
facts expected to be shown by him are
material and important under the
issues."
The motion is properly denied if the
residence of the absent witness is un-
known and there is no showing that if
further time were given it could be
ascertained. Heitschmidt v. McAlpine,
59 111. App. 232. See also Stevenson v.
Sherwood, 22 111. 239, where sufficient
diligence had not been used to ascer-
tain the whereabouts of the absent wit-
ness, who lived in another state, so
that his deposition could be taken.
An affidavit giving neither the name
nor residence of the witness was
held insufficient in Ilett v. Collins, 102
111. 405.
For a sufficient affidavit, where the
name and residence were unknown,
see Form No. 6286.
1. Averment of Diligence. The affi-
davit must show " that due diligence
has been used to obtain such testimony
or the want of time to obtain it." Starr
& C. Anno. Stat. 111. (1896), p. 3036,
par. 43 (Prac. Act, c. no, 43).
In the case which furnished the
precedent in the text the court said:
"We deem the diligence set forth
sufficient. Affidavits should not be
required to be burdensomely minute
in anticipating and negativing every
possible contingency."
What constitutes diligence necessarily
depends on a variety of circumstances,
which must be sufficient to satisfy the
court that reasonable efforts have been
used. Eames v. Hennessy, 22 111. 631;
Shook v. Thomas, 21 111. 89, both cases
holding also that " on a first applica-
tion a less degree of diligence would
satisfy the court than on a second or
third application "; and in the report of
the case last cited will be found the
substance of an affidavit which failed
to satisfy the legal requirements.
Where a party is sued without per-
sonal service of process and has no
actual notice of the suit, the rule of
diligence is materially relaxed. Lock-
hart v. Wolf, 82 111. 38, where the
judgment was reversed for the denial of
a continuance.
" It does not avail the party any-
thing that the witnesses were written or
telegraphed to be present at the trial.
The law has provided a different mode
for procuring their depositions or their
attendance and it must be followed."
Quincy Whig Co. v. Tillson, 67 111. 353.
In Trask v. People, 151 111. 527, the
court said: " The affidavit fails to show
any effort to subpoena the witness until
the day before the cause was called for
trial, and even then no subpoenas were
taken out. This was not such diligence
as required by the statute." /
In Searls v. Munson, 17 111. 558, the
court said: "It is true parties neglect-
ing to subpoena witnesses do so at
their risk of nonattendance. But when
the witnesses actually attend upon
request the party's diligence is as
complete as if they attended upon sub-
poena. They may or may not be lia-
ble to attachment for not remaining,
but no court would attach a witness
leaving upon sudden sickness in his
family, as is shown here, and so the
party's certain and complete surprise
is shown by the departure."
For the substance of an affidavit
held to show sufficient diligence to pro-
cure the deposition of a witness resid-
ing in another state see Morgan v.
Raymond, 38 111. 451.
For the form of an affidavit held
sufficient in every particular, and es-
pecially on the point of materiality
of the expected testimony and want of
sufficient time to take the deposition of
the witness, see Lee v. Bates, 2 111. 529.
Averments of diligence held in-
sufficient are quoted verbatim in Cook
v. Norwood, 106 111. 560.
365
Volume 5.
6285. CONTINUANCES AND 6285.
said Birkell, that after the premises, for the rent of which the dis-
tress in this case was made, were leased to this affiant by said plain-
tiff, said plaintiff leased a room in said building to said Birkell, to be
used as a place for the retailing of beer and spirituous liquor, com-
monly called a grocery. Affiant saith that the premises leased by
said plaintiff to affiant, to recover the rent of which the distress in
this case was made, were leased to affiant to be used as a hotel, and
were so used by affiant. Affiant expects to prove by said Birkell,
that the room leased to him for the purpose aforesaid, was in the
same hotel building, occupied as aforesaid by affiant, and directly
under the dining room of said hotel occupied by affiant. Affiant
expects and believes that he can prove by said Birkell, that said room
was rented to said Birkell by plaintiff, for the purpose aforesaid, con-
trary to the wish, and in despite of the remonstrance of affiant made
to said plaintiff before said room was rented by said plaintiff to said
Birkell, and that said Birkell occupied said room by the leave of the
said plaintiff during the whole quarter in which the rent, now sought
to be recovered by the plaintiff in this case, is alleged to have
accrued. Affiant expects and believes that he can prove by said
John Hoffman, Henry Fessler, and C. A, Holmes, each of them, that
the use of said room, so rented and occupied by said Birkell, in said
City Hotel, for the purpose of being used as a place for the retail of
spirituous liquor and beer, commonly called a grocery, was neces-
sarily, as said premises were situated, a very great injury to any
person occupying the remainder of said premises for hotel purposes,
or that part thereof occupied by affiant for a hotel, and that the
value of said premises, occupied by affiant, was thereby depreciated,
at least to the amount of one hundred dollars per quarter. Affiant
saith, that under the lease upon which the rent accrued which the
plaintiff now seeks to recover, affiant occupied said premises, men-
tioned in said lease, over two years as a hotel, and he expects to prove
by said Birkell, that said Birkell occupied said room in said premises
during said time, for at least six months, including the quarter for
which rent is sought to be recovered in this suit; and by said Hoffman,
Fessler and Holmes, that the use of said premises occupied by affiant was
lessened in value at least two hundred dollars thereby; and he expects
to prove by said last named witnesses, that the business of selling liquor
and beer by retail, in that room, was necessarily very injurious to the
business of hotel keeping carried on by affiant in his business of
hotel keeping in said premises, by keeping customers away from
affiant, and seriously lessening the profits of his said business. Affiant
For the form of an affidavit held in- Richards Iron Works v. Glennon, 71
sufficient for want of diligence to take 111. n; Birks v. Houston, 63 111. 77;
the testimony of the absent witness by Eames v. Hennessy, 22 111. 631; Cook v.
deposition, the witness residing out of Norwood, 106 111. 558; Walker v. Doug-
the county, and a lack of ordinary las, 70 111. 445; Fisher v. Greene, 95 111.
effort to obtain his attendance, the 94; Quincy Whig Co. v. Tillson, 67 111.
cause having been once continued for 351; Ide v. Gilbert, 62 111. App. 524;
absence of another witness, see Me- Anheuser-Busch Brewing Assoc. v.
Connel v. Johnson, 3 111. 524. Hutmacher, 127 111. 652; Northwestern
For cases holding that there was an Benev., etc., Aid Assoc. v. Primm, 124
insufficient showing of diligence see 111. 100; Coffey v. Fosselman, 72 111. 69.
366 Volume 5.
6285.
AD JO URNMENTS.
6285.
expects and believes that he can prove by said T. D. Brewster, that
after affiant rented the said City Hotel, for which rent is now sought
to be recovered by the plaintiff and while affiant occupied the said
premises, said plaintiff authorized and permitted \hzChicagoand Rock
Island Railroad to enter and take possession of a part of said premises,
and received the sum of four hundred dollars for his damages
therefor from said company; and that the said company, a
few days previous to the commencement of the quarter for
which rent is claimed in this case, did take possession of said
portion of said premises, by virtue of an agreement with said
plaintiff, and tore out one side of the stone barn belonging to the
premises rented as aforesaid by affiant from plaintiff, and have since
held permanently a portion of said premises, including a portion of
the barn on said premises; 1 that he expects to prove by other wit-
1. Statement of Expected Testimony and
Materiality Thereof. The affidavit must
show " what particular fact or facts
the party expects to prove by such
evidence." Starr & C. Anno. Stat. 111.
(1896), p. 3036, par. 43 (Practice Act, c.
no, 43). Consult also annotations
to Form No. 6272, supra.
"Should the court be satisfied that
such evidence would not be material on
the trial of the cause, * * * the case
shall not be continued." Starr & C.
Anno. Stat. 111. (1896), p. 3040, par. 44
(Prac. Act, c. no, 44).
The affidavit must state the substance
of the testimony sought. Ilett v. Col-
lins, 102 111. 405.
The affidavit must state facts from
which the court can determine whether
the presence of the absent witness will
be of any benefit to the party. A state-
ment of mere conclusions is not enough.
Willardw. Petitt, 54 111. App. 257, an ac-
tion for malicious prosecution, wherein
the defendant's affidavit merely stated
that he expected to prove by the absent
witness "that the grievances com-
plained of * * * were justifiable and
were committed, if at all, upon reason-
able and justifiable grounds." See also
Meyers. People, 156 111. 126.
It cannot be assumed that the wit-
ness if present will testify to anything
more than is stated in the affidavit, and
it must be presumed that the state-
ments in the affidavit are as favorable
to the applicant as the real facts will
warrant; and therefore, as in the case
of a pleading, all intendments, so far
as the affidavit is equivocal or uncer-
tain, must be taken against it. Slate
v. Eisenmeyer, 94 111. 101.
In Moody v. People, 20 111. 317, where
the affidavit is set forth verbatim, the
court said: " It is believed that, in our
practice, the affidavit has always speci-
fically stated the particular fact or facts
which can be proven, and in what way
they are material, and that, failing to
do so, an affidavit was never held to
be sufficient. Anything short of that
degree of certainty would leave it to
the affiant to determine what consti-
tutes a defense, and not to the court, as
it certainly should." Accordingly it
was there held that the defendant's
affidavit was insufficient which merely
stated in effect that by the absent wit-
nesses she could prove that she was
not guilty without averring that s^nch
witnesses of their own knowledge could
so state, or from information could
state material circumstances. To the
same point see Steele v. People, 45 111.
152, where the insufficient affidavit is
printed in full.
" To entitle a party to a continu-
ance under the statute, the facts ex-
pected to be proved by the absent
witnesses should be set forth with such
certainty that the opposite party can,
if he thinks proper, admit them, and
go to trial." Allen v. Scott, 13 111. 80.
Hence, as was held in the case last
cited, an affidavit by defendant that
he expected to prove by the absent
witness " that he had paid the whole
or some part of the said sum of
money in the said plaintiff's declara-
tion mentioned" was bad for indefi-
niteness, because it was left wholly
uncertain how much or what part the
defendant expected to prove had been
paid, and consequently put it out of the
power of the plaintiff to avoid a con-
tinuance by admitting the amount.
"An affidavit for continuance on ac-
count of the absence of a witness must
367
Volume 5.
6285.
CONTINUANCES AND
6285.
nesses that the use of the premises, occupied by affiant as aforesaid,
was lessened in value for the quarter for which the said plaintiff seeks
to recover rent in this case, by reason of the possession taken as afore-
said by said company, in, at least, the sum of one hundred and sixty
dollars; and that he knows of no other witnesses by whom he can so
fully prove the same facts. 1 Affiant saith that during the time he so
occupied said City Hotel, as lessee of the plaintiff, the plaintiff, after
the lease to affiant upon which rent is sought to be recovered in this
cause, said plaintiff leased one room in said City Hotel to one Storey,
whose first name affiant does not know, to be used as a shop for the
manufacture of tin and sheet-iron ware, and another room in the
same building to Owen Judge, for a bake shop for the manufacture of
bread and crackers, etc. ; and said rooms were immediately under
two sitting rooms in said hotel. And affiant expects to prove by
said Hoffman and Holmes, that said business of making tin and sheet-
iron ware, and the business of a bake shop was improper business to
be carried on in said building, while the hotel was kept in the same,
and necessarily greatly injured affiant in his said business; and that
said business of manufacturing tin and sheet-iron ware was carried
on, and the said bake shop was in operation, during some five or six
weeks, during the tenancy of affiant aforesaid, and the bake shop was
continued for about one year, and during the whole quarter in which
the rent, sought to be recovered in this case, accrued.
[Affiant says that all the facts which he expects to prove as afore-
said by all of said witnesses are true, 2 that he expects to procure
not only show the facts which can be
proved by the witness, but how such
facts will be material to the issue about
to be tried." Long v. People, 135
111. 435, a prosecution for assault with
a deadly weapon, where the defend-
ant's affidavit stated that he expected
to prove by the absent witness that
the prosecuting witness had threat-
ened to kill one of the defendants.
It was held insufficient because it
failed to show that there was any at-
tempt to execute the alleged threat
at the time of the assault charged.
See also to the same point School Dist.
No. 2, etc., v. Hentz, 57 111. App. 648.
"Where testimony is important only
in connection with certain facts, those
facts should be set forth or referred to,
so that the materiality of the evidence
may be apparent to the court." Bailey
v. Hardy, 12 111. 459. See also Steele v.
People, 45 111. 143, and supra, note
7, P- 338.
The affidavit was held insufficient in
McCreary v. Newberry, 25 111. 496, for
the sole reason that there was no issue
to which the expected testimony, as
set forth, would have been pertinent.
Slate v. Eisenmeyer, 94 111. 100, be-
cause the facts which it was alleged
the witness would prove were inad-
missible as evidence under the issues.
For other cases where the evidence
was held to be immaterial see West
Chicago Park Com'rs v. Barber, 62 111.
App. 108; Chambers v. Beahan, 57 fll.
App. 285.
1. No Other Witness to Same Facts.
This averment is not required by the
statute, but in Shook v. Thomas, 21
111. 90, the court said: "The affidavit
should also state that the party has no
other witness by whom the same facts
can be proven, or if the point is dis-
puted and numerous witnesses are to
be examined, show that fact, or that it is
a question of identity upon which there
will be a contrariety of evidence. This
is necessary to show its materiality."
See also supra, note 2, p. 343; Hodges
v. Nash, 43 111. App. 638; Eames v.
Hennessy, 22 111. 631; Jarvis v. Shack-
lock, 60 111. 378. And to the point that
if the affidavit shows that there will be
a controversy in the evidence it need
not state that there is no other witness
by whom the same fact can be proved,
see North v. People, 139 111. 98, and
Form No. 6286, infra.
2. Belief that Testimony Sought is True.
This averment is not required by the
368
Volume 5.
6286.
ADJOURNMENTS.
6286.
their testimony by the next term of this court, 1 and that neither of
them is absent by the permission or consent of the affiant, directly
or indirectly given. 2
Thomas J. Wade.\
Subscribed and sworn to before me this twenty-ninth day of May,
A. D. 1 804.
^ P. Lindly.
Form No. 6286. 3
(Precedent in North v. People, 139 111. 91.)*
{Title of court and cause, and venue as in Form No. 6%85.}
Daniel North deposes that he has been in jail ever since the time of
statute, but in Wilhelm v. People, 72
111. 468, the affidavit was held insuffi-
cient because it was not stated that the
facts expected to be proved by the ab-
sent witness were true, or that he was
actually present at the time, but merely
that the applicant expected to prove by
him that he was present, etc. See also
supra, note 2, p. 342.
The affidavit need not directly state
that the facts proposed to be proved by
the absent witness are true, if it shows
that in the belief of the affiant the facts
are in substance as it is said the absent
witness will testify. North v. People,
139 111. 99.
1. Expectation of Procuring Testimony.
This averment is not required by
the statute, but was held necessary in
Shook v. Thomas, 21 111. 90; Eames v.
Hennessy, 22 111. 631. See also supra,
note 8, p. 345.
Where the absent witness is a non-
resident, it is indispensable that the
affidavit shall state facts showing the
reasonableness of the applicant's ex-
pectation that he will be present at the
time to which it is proposed to continue
the cause. Wilhelm v. People, 72 111.
471, where the affidavit held insufficient
is given verbatim.
2. Witness Not Absent by Procurement
or Consent. "The affidavit should state
that the witness is not absent by the
permission and consent of the party."
Shook v. Thomas. 21 111. 90. See also
North Chicago City R. Co. v. Gastka,
128 111. 613. The averment is not re-
quired by the statute, but see supra,
note 5, p. 345.
3. Affidavits in Criminal Cases. The
section upon which the preceding forms
were based, Starr & C. Anno. Stat. 111.
(1896), p. 3036, par. 43, is a part of the
Practice Act, c. no, 43, and is the
only provision relating to the contents
of affidavits for continuances in courts
of record. Prefixed to the Practice Act
in Starr & C. Anno. Stat. 111. (1896), p.
2977, is the following note by the editors:
" This act governs civil suits on the law
side in trial courts. * * * It does not
in general govern chancery or criminal
suits in trial courts unless such suits
are expressly mentioned." And in
Baxter v. People, 8 111. 372, it was
expressly held upon much considera-
tion that the Practice Act of 1827,
whereby a party was entitled to a con-
tinuance upon filing an affidavit of
certain facts, " only applies to civil pro-
ceedings and has never been held or
supposed to apply to criminal cases.
Had the courts in all criminal cases
required affidavits for continuances to
be as full as required under the statute,
it might and would frequently have
operated most oppressively upon^^rris-
oners." But in Trask v. People, 151
111. 527, where an affidavit for a continu-
ance by the defendant in a criminal
case was held insufficient, the court
quoted the section above mentioned,
viz., Practice Act, c. no, 43, and pro-
ceeded to exact compliance with its
requirements seriatim. The Illinois
decisions relating to the sufficiency of
affidavits in both criminal and civil
cases are cited in the notes to Form
No. 6285, supra.
" The essential requisites of the affidavit
are these: First The name and
residence of the witness; that he is
rfeally material and shown to the court
by the affidavit to be so. Second That
the party who applies has been guilty
of no neglect, or, in other words, shows
the exercise of proper diligence. Third
That the witness can be had at the
time to which it is sought to have the
trial of the cause deferred." Shirwin v.
People, 69 111. 58, holding that the affi-
davit therein presented was sufficient,
and adjudging it manifest error to over-
rule the motion for continuance.
4. It was held reversible error to re-
5 E. of F. P. 24.
369
Volume 5.
6286. CONTINUANCES AND 6286.
the alleged homicide, July 21, i8P0; that he was twenty-six years of
age November SO, i890, and is a farmer and ditcher by occupation ; that,
as set forth in former affidavit, he has been unable to procure counsel
to advise him as to his rights, and unable, for want of means, to hunt
up and ascertain material witnesses in his behalf, and has been
unable, for want of means, to have anything done in the preparation
of his defense until November 7, iS90, when Strawn 6 Norton were
appointed by the court to defend him; that since that time he and
his attorneys have worked diligently and industriously, as circum-
stances would permit, to ascertain the facts in the case, and learn
the names and whereabouts of such persons as may have witnessed
the facts and circumstances leading up to the alleged shooting, but
they have been unable to be ready for trial at this time, as herein-
after shown; that, imprisoned, defendant has been able to do but
very little to assist his attorneys in the premises; that he is informed
and believes that the witnesses for the prosecution will fix the time
of the alleged shooting at or between nine and ten o'clock in the
forenoon of July 21, i890, and the place as near the Smith House, in
Pontiac, in a populous part and near the business center of the city,
and defendant is sure and certain that some person or persons not yet
known must have been eye-witnesses to the facts which led up to and
caused the alleged shooting; that defendant had not the slightest
intention of assaulting Hodge or other person, and did not do so
except in his necessary self-defense; that though affiant was much
intoxicated at the time, as shown in his affidavit of Novembers, iS90,
made part hereof by reference, he believes that Hodge came upon
him in a very threatening manner and demanded defendant's
revolver, and that he refused to give it to him, and defendant tried
to go away from him, but Hodge followed him up and struck him
fuse a motion for continuance upon this read the affidavit of one of the counsel
affidavit. named, in corroboration of his affidavit.
Pertinent Facts in the History of the But the court overruled the motion,
Case. The defendant was prosecuted and thereupon Messrs. Strawn &
for the murder, on July 21, 1890, of Norton, who had acted as counsel for
William Hodge, a city marshal of Pon- North when he was arraigned and in
tiac. On the yth of November, 1890, making this motion for continuance,
the case was called for trial, and North withdrew from the case and declined
then entered his motion to continue the to voluntarily act further as his coun-
cause, and in support of his motion he sel. The court thereupon appointed
read his own affidavit, in which he Messrs. Strawn & Norton as counsel
stated, among other things, that he had to defend North, and also ordered the
been unable to prepare his defense by case to be set down for hearing on the
reason of being in jail and of his having I7th of November. Thereupon, on
no means wherewith to employ counsel; the last named date, North, by his
that he wished Messrs. Strawn & Nor- counsel, applied for a change of venue
ton to defend him, and had a conditional on account of the prejudice of the pre-
contract with them to that effect, but that siding judge, which was allowed, and
they will do nothing until the amount another judge was immediately called
of their stipulated compensation is in to preside, and did thereafter preside
raised, which he had been unable to in the court, and the cause was by that
have done; that he has had communi- judge set down for hearing on that
cation with his father, who is now day the i8th of November. On that
taking steps to raise the requisite means day North made a second application
as rapidly as possible, and that he ex- for continuance of the cause and sup-
pects soon to have them; and he also ported it by the affidavit here printed.
370 Volume 5.
6286. ADJOURNMENTS. 6286.
several heavy blows on the head with a club or some other heavy
weapon, and so dazed and stunned him that he has little or no knowl-
edge of what subsequently occurred, except as he has it from hear-
say; that since a knowledge of the facts as now claimed by the
prosecution came to him since his imprisonment, he has as diligently
as his imprisonment would permit endeavored to ascertain the names
of eye-witnesses of what occurred between defendant and Hodge
leading up to the alleged shooting, and other facts and circum-
stances attending the same, but has been unable to do so until about
the hour of seven o'clock last evening, November 17, i&90, when he
learned for the first time of the facts stated in the affidavit of Charles
Lake, filed herewith; * that defendant has every reason to believe, and
does believe, that the facts stated in said affidavit of Lake are true,
and that the "runner" therein mentioned was an eye-witness to the
matters and things related to said Lake, as stated in said affidavit;
that if this cause shall be continued to the next term of this court,
defendant has no doubt but that his attorneys and friends will be
able to trace and ascertain the name and whereabouts of said runner,
from the hotel register in Pontiac, where said runner put up on the
day of the alleged shooting, and have him in attendance upon this
trial as a witness in defendant's behalf; that he is informed and
believes that runners upon the road are most generally acquainted
with each other, and by taking all of the names from the hotel
registers in this city for the day in question, he verily believes he
will be able to ascertain the whereabouts of some of them, and that
by conferring with them he will be able to trace up all of them,
including said runner referred to in said Lake's affidavit; that it is
reasonable to suppose, and he verily believes, that other persons yet
unknown were eye-witnesses to said facts and circumstances, and ndw
1. The Additional Affidavits. Omit- followed him, and violently seized him
ting the caption and signature, Charles with one hand and commenced beating
Lake's deposition was as follows: him over the head with a club, or
"He is a painter by trade, and has policeman's 'billy,' which he held in
resided in Pontiac for the past twenty- the other hand, and then a scuffle en-
nine years; that since the alleged sued between the two men, and in the
shooting, and he thinks it was the next scuffle (Hodge still beating him with
day after, he was going on a Wabash the club) North went down, and he
train from Pontiac to Saunemin, where heard shots fired after the scuffle corn-
he was doing a job of painting for menced, but could not tell which of the
Holdridge, and that in said train he got men fired the shots, and that North
into conversation with a man whom he seemed very much intoxicated; that
understood to be a runner for a whole- said runner had a brown mustache and
sale house, and that the shooting of he thinks he would be able to identify
Hodge came up, and said runner told him, and he inferred from the conver-
him that he saw the whole thing from sation that said man was a runner for
the west end of the porch of the Smith a Chicago wholesale house; that he got
House, where he was standing at the out of the train at Forrest and ate a
time, and that he did not think North lunch at the counter at the station, and
was to blame in the matter, because affiant understood from him that he
the policeman (meaning Hodge) rushed was then on his way to Chicago; that
upon him in a violent and threatening affiant made the foregoing facts known
manner and demanded that he give to Mr. C. C. Strawn for the first time
him his revolver, which North refused about half-past six o'clock last evening,
to do, and started to go away toward November 17, 1890."
the north, and thereupon the policeman
371 Volume 5.
6286. CONTINUANCES AND 6286.
that he has attorneys to look after and manage his defense he will be
able to ascertain their names, and have them present at the next term
of this court to testify in his behalf; that Pontiac is a city of about
3,000 inhabitants, and there are only two or three hotels of any
importance in the city, and it will not be difficult to trace up the
transients stopping at them on a given day; that this is the first
term of court since the alleged shooting, and under the unfortunate
circumstances of the case it would be most unjust and unnecessary
to compel defendant to submit to trial at this time; that the
materiality of said runner, and of other witnesses defendant believes
he will be able to produce by the next term of court, consists in this:
that it will show that Hodge violently assaulted affiant in such
manner as to cause a reasonable man to believe that his life was in
danger; that affiant knows of no other witness or witnesses by whom
he can prove said facts; that it is wrongfully and mistakenly claimed
by the People, based upon the testimony of some witness or witnesses,
as defendant is informed and believes, that affiant was the aggressor,
and fired the alleged shot or shots without provocation and under
circumstances not called for in his necessary self-defense, and it is
therefore indispensable to justice and defendant's defense that he
should have the testimony of said runner, and others whom he believes
he will be able to discover by the next term of this court; that
defendant's want of readiness for trial is not through any fraud,
collusion or procurement, but he has good reason to believe, and
does believe, that he will be able to find said runner and others to
establish the facts set up in the affidavit of said Lake, and have them
present at the next term of this court; that since said affidavit of
November 6, i890, his friends have furnished him with some money
for his counsel, and to pay necessary expenses of hunting up and
procuring the attendance of such material witnesses as he believes he
will be able to discover by the next term of court, and he knows of
no reason why he may not be fully ready for trial at that time; that
defendant is entirely ignorant of court proceedings, and being delayed
and disappointed in the procurement of counsel, as shown in said
affidavit of November 6, i890, he was prevented from having anything
done in the preparation of his defense until said 1th day of the pres-
ent month, when Strawnfy Norton were appointed to defend him;
that, imprisoned as he was, he could hear or learn but little of what
was claimed against him as to the facts and circumstances of the
case, and being entirely unacquainted with such matters he did not
know what to do, and bent all his efforts to have his friends raise
money to employ counsel, but was not able to do so in time for this
court; (defendant makes affidavit of C. C. Strawn, filed November 7,
i890, part of this affidavit by reference;) 1 that he is informed and
1. Omitting the caption and signa- every effort in their power to be ready
ture, C. C. Strawn's affidavit was as for trial at this time, consistent with
follows: their duties to other clients having
" He is of counsel appointed to de- causes in this term of court; that on
fend accused November 7, 1890; that Monday, November 10, 1890, the case
since said appointment of the firm of of Heisner v. Illinois Central Railroad
Strawn and Norton they have put forth Co., involving very complicated ques-
372 Volume 5.
6287.
AD JO URNMENTS.
6287.
believes that the matters concerning which said runner and other
witnesses will testify are material, and that there will be a conflict of
testimony thereon, and that the testimony of said witnesses will be
absolutely necessary to establish a reasonable doubt in the minds of
the jury of the guilt in the premises; that said runner, and other
persons expected to be procured by next term of court, are not absent
by the permission or consent of defendant; 1 that he expects to pro-
cure their testimony by the next term of court, and that this applica-
tion is not made for delay, but that justice may be done. {Signature
and jurat as in Form No. 628o.~)
Form No. 6287.*
h ^ ^ a . Q
Thomas Nave
against >
Patrick C. Leary. }
State of Indiana, \
Marion County, j
Patrick C. Leary, being duly sworn, upon his oath says that he is
ss.
tions of law and fact under the drain-
age laws, came on for trial, and was
submitted to the jury at the adjourn-
ment of court on the following Thurs-
day evening, the jury returning a
verdict the next morning, and Strawn
and Norton conducted the defense for
said company, and the cause was very
hotly contested, and during the trial
thereof they were wholly unable to
give any substantial attention to the
case of the defendant North in this in-
dictment; that on Friday, November
14, 1890, after the verdict in said rail-
road case, the case of Filbert v. Lynch
et al., under the Dram-shop act, for loss
of support by the drunkenness of her
father, came on for trial, and Strawn
and Norton were of counsel for defend-
ants in that suit, which continued until
the forenoon of the next day, Saturday,
November 15, 1890; that the engage-
ments of Strawn and Norton in said
causes were long prior to the present
term of this court and their appoint-
ment to defend accused in this indict-
ment, and they were the only counsel for
the company in said railroad case, and
they could not put those cases aside for
this cause; that in the limited time allot-
ted to them, under the circumstances, to
inquire into the law and facts and cir-
cumstances of this case, they have
found that there are several very close
and vital questions of law and fact,
and the charge being a capital one,
they are not prepared to properly con-
duct the defense at this term, and
could not do the defendant justice for
want of sufficient time to become
acquainted with said law and facts,
and considering the fatal result that
may befall the defendant by reason of
such want of necessary preparation,
affiant, in behalf of his said firm, must
beg of this court to be relieved of the
responsibilities of the case, unless fur-
ther and sufficient time for said neces-
sary preparations be granted; and
Charles Lake informed affiant of^the
facts set forth in his affidavit filed here-
with, for the first time last evening,
November 17, 1890, about half-past
six o'clock, and affiant immediately
communicated such facts to defendant;
that he and his partner (Norton) have
worked "as diligently as the circum-
stances above related would permit, to
be ready for this trial, but have been
unable to do so, and affiant states that
this application is not made for delay,
but that justice may be done."
1. The court said: " It is impossible
to discover any negligence in North in
not sooner having ascertained the ex-
istence of this witness, and it appears
that after the information in regard to
such witness was communicated to him
there was not time for his attorneys to
find the witness. It has never been
regarded necessary for the defendant
to show the same degree of prompt-
ness and diligence in preparing for
trial at the term at which the indict-
ment is returned as at subsequent
terms."
2. In Leary v. Nave, 66 Ind. 221, de-
fendant's affidavit, which is therein set
373
Volume 5.
6287.
CONTINUANCES AND
6287.
the defendant in the above entitled cause; 1 that he cannot safely go
into the trial of said cause in this court on this day by reason of the
absence of one Edward Connelly? who is a competent, proper and
material witness for him upon the trial of this cause; 3 that he be-
forth, was held insufficient in respect
of the diligence shown. Some parts
of that affidavit that were apparently
unobjectionable are reproduced in this
form for the sake of verisimilitude.
Necessity of Affidavit. Horner's Stat.
Ind. (1896), 410, 1781, provide that
a motion to postpone the trial on ac-
count of the absence of evidence can
be made " only upon affidavit show-
ing," etc. The statute applies to tem-
porary postponements as well as to
continuances for the term. Morris v.
State, 104 Ind. 457, holding that a mo-
tion to postpone a trial until the next
day, if not supported by affidavit or
other affirmative showing, is properly
overruled.
Second Application for Same Cause.
One application for a continuance, on
account of an absent witness having
been refused, the affidavit on a second
application at the same term on account
of the absence of other witnesses
should contain a reasonable excuse
for the failure of the applicant to avail
himself of the last ground in his first
application. Shattuck v. Myers, 13
Ind. 46.
It is error to refuse a continuance when
the affidavit shows everything required
by the statute. Cutler 7;. State, 42 Ind.
244; Jenks v. State, 39 Ind. 4.
1. Who may Make Affidavit. The
statute does not designate who shall
make the affidavit. It may be made by
an agent of the party, without account-
ing for the absence of the principal or
giving any other reason why it was not
made by him. 'That the agent is a
stranger to the record can make no dif-
farence. Nay, for that very reason his
statements under oath are entitled to
greater consideration than if made by
the interested party himself." Espy v.
State Bank, 5 Ind. 274 (where the sub-
stance of the affidavit is given), cited
with approval in Abbott v. Zeigler, 9
Ind. 511, holding that an attorney
might make an affidavit for a change
of venue on behalf of his client. See
also Form No. 6288, infra.
The sickness of a witness preventing
him from attending court may be
shown by the affidavit of any person
who knows the fact. " We know of no
principle of law or rule of practice,"
said the court, " which requires the affi-
davit of a physician to show the sick-
ness of a witness." Cutler v. State, 42
Ind. 247. But see notes to Form No. .
6305-
2. Name of Witness. The affidavit
must show the name of the witness if
known. Horner's Stat. Ind. (1896),
410, 1781. See also supra, note I,
p. 334. If unknown, diligence to ascer-
tain it must be shown. Post v. State.
14 Ind. App. 452. See also the follow-
ing note, and for an affidavit showing
sufficient diligence in this behalf see
Form No. 6286.
3. Expected Testimony and Materiality
Thereof. The affidavit must show " the
materiality of the evidence expected to
be obtained" and " what facts he be-
lieves the witness will testify to."
Horner's Stat. Ind. (1896), 410, 1781.
See also supra, note 7, p. 335 et seq.
Materiality and Competency. The
affidavit must show that the absent
testimony is material and competent.
French v. Blanchard, 16 Ind. 146. See
also Benson v. McFadden, 50 Ind. 431.
A statement that a nonexpert wit-
ness will testify that the party was of
unsound mind is insufficient, because
such testimony would not be competent
evidence. That the witness will testify
to certain specified facts must be al-
leged. Warner f. State, 114 Ind. 137.
In Beavers v. State, 58 Ind. 530, it
was held that an affidavit in a criminal
case stating that the absent testimony
will prove an alibi must show that the
proposed alibi will cover the whole
time when the crime is alleged to have
been committed.
Statement of Facts. The affidavit
should state specifically the facts, and
not merely legal conclusions, to which
the absent witness will testify. Warner
v. State, 114 Ind. 137, holding that the
facts should be so stated that the oppo-
site party may admit them and thus
avoid a continuance. In the same case
it was held that if the affidavit states
that the absent party will testify to
threats the language used should be
stated. See also Miller v. Harker, 96
Ind. 234.
In French v. Blanchard, 16 Ind. 146,
the affidavit was held insufficient where
it averred merely that affiant expected
374
Volume 5.
6287.
AD JO URNMENTS.
6287.
lieves said witness, if present, would testify on the trial of this
cause that {Here state the facts to which it is believed that he will tes-
tify). Affiant further says that he believes said facts to be true; 1 that
he is unable to prove said facts by any other witness whose testimony
can be as readily procured. 2
Affiant further says that said witness now is, and continually for
more thanyfo^ years last past hath been, a resident 'of the city of
Indianapolis, Marion county, Indiana? that on the 13th day of Febru-
to prove by the absent witness " all the
material allegations in the second,
third and fourth paragraphs of his
answer."
" The material facts which the statute
requires to be set forth in an affidavit
for a continuance cannot be supplied
by merely attaching to the one pre-
sented an old affidavit, however formal,
which has served its purpose at a pre-
vious term. The affidavit must st out
and aver all the facts as they then
exist which are essential to support the
application." Sutherlin v. State, 108
Ind. 390, holding that an affidavit in
the following language was insuffi-
cient: " Comes now the defendant, who
being duly sworn says that the witness
John Porter, referred to in his affidavit
hereto attached and made part hereof,
which was made at the last court, as to
what said Porter would swear to and
which by agreement is made part
hereof, is, as he now learns for the first
time," etc., " that the evidence of said
Porter is very material as the court will
see by the affidavit hereto attached."
Approved Form. The following is
an extract from an affidavit by the de-
fendant in a criminal case which was
held sufficient in Gross v. State, 2 Ind.
136: "William Gross, the defendant in
this case, makes oath that he is in-
formed and believes that the prose-
cuting attorney intends to produce as a
witness against this affiant one John
C. Stewart, for the purpose of proving
that this affiant made certain admis-
sions of his guilt with respect to the
crime with which he is charged in the
indictment. This affiant further says,
that such admissions as he did make to
said Stewart were induced by raising
the hopes of this affiant if he should
confess his guilt, and by exciting his
fears if he should not confess. That
he expects to prove by one Andrew
Wanchop, who was present when this
affiant made the admissions alluded to,
that to induce him to confess, said
Stewart told this affiant that he would
in about half an hour be taken out of
jail, be tried, and probably be hung
unless he confessed his guilt; but if he
did so confess, it would be better
for him, and he might be cleared.
* * * That as he is informed and
believes, said Stewart denies having
held out inducements for him to con-
fess; and there was no one person who
was present during all the conversation
between this affiant and the said Stew-
art but themselves. The confessions
made to said Stewart were the first con-
fessions made by this affiant in respect
to the charge made against him in this
cause, and would not have been made
but for the inducements aforesaid."
1. Truth of Expected Testimony. The
affidavit must state that the affiant be-
lieves the facts, to which it is alleged
the absent witness will testify, to be
true. Homer's Stat. Ind. (1896),
410, 1781. See also supra, note 2, p.
342.
2. Unable to Prove Facts by Other Wt-
nesses. The party making the affidavit
must state that " he is unable to prove
such facts by any other witness whose
testimony can be as readily procured."
Horner's Stat. Ind. (1896), 410, 1781.
See also supra, note 2, p. 343. For
cases enforcing this requirement see
Miller v. Harker, 96 Ind. 234; Sutherlin
v. State, 108 Ind. 390; French v. Blan-
chard, 16 Ind. 146. But the statute
does not mean that a party shall be
compelled to resort to his own testi-
mony where he knows the facts as well
as the absent witness. Ransbottom v.
State, 144 Ind. 250; Fox v. Reynolds,
24 Ind. 46.
3. Residence of Witness. The affidavit
must show the "residence of the wit-
ness, if known." Horner's Stat. Ind.
(1896), 410, 1781. See also supra,
note I, p. 334. Merely stating that a sub-
poena for the witness was issued to tne
sheriff of a certain county is nor a suf-
ficient averment of residence. Beavers
v. State, 58 Ind. 530, where the report
contained extracts from the affidavit.
If the residence of the witness is un-
known, the affidavit must show that
375
Volume 5.
6288.
CONTINUANCES AND
6288.
ary, i877, he caused a subpoena to issue out of the office of the clerk
of this court, directing and commanding said witness to appear and
testify as a witness for this affiant upon the trial of said cause; that
said subpoena was on said day placed in the hands of the sheriff of
said Marion county to be served, and that said sheriff on the 19th
day of February, i877, returned said subpoena not found; that said
witness is absent from this court, and, as affiant is informed and be-
lieves, is now in the city of Lafayette temporarily; that affiant was
ignorant of the fact that said witness was absent from Indianapolis
until the return of the subpoena as above mentioned, and it was then
too late to procure the attendance of said witness or his deposi-
tion upon this trial; 1 that affiant believes the testimony of said
witness can be procured within a reasonable time; 2 that the absence
of said witness has not been procured by the act or connivance of
the affiant, nor by any other person or persons at his request, nor
with his knowledge and consent. 3
Patrick C. Leary.
Subscribed and sworn to before me this #0Mday of February, i877.
Charles Porter, Clerk.
Form No. 6288.*
sufficient diligence has been used to
ascertain his whereabouts. Wolcott v.
Mack, 53 Ind. 269, where the affidavit
held insufficient is set forth in full.
McKinlay v. Shank, 24 Ind. 258, where
the substance of the affidavit is given.
Post v. State, 14 Ind. App. 452.
1. Diligence to Obtain Testimony. The
affidavit must show " that due diligence
has been used to obtain " the absent
testimony. Horner's Stat. Ind. (1896),
410, 1781. See also supra, note 5,
p. 339. For cases showing insufficient
diligence to obtain the attendance of the
absent witness or his deposition see
McDermott v. State, 89 Ind. 187, where
the witness resided out of the state.
Robinson v. Glass, 94 Ind. 211; Mugg
v. Graves, 22 Ind. 236; State v. Place,
127 Ind. 194; Leary v. Nave, 66 Ind.
221, where a subpoena was not issued
until the day set for trial, on which
point see also Merrick v. State, 63 Ind.
330; Ransbottom v. State, 144 Ind. 250.
The affidavit must show that the ap-
plicant personally has used due dili-
gence. It does not show a sufficient
excuse by averring that his adversary
had summoned the witness. Hutts v.
Shoaf, 88 Ind. 395.
A mere averment of due diligence is in-
sufficient. Pence z.. Christman, 15 Ind.
259, holding that an allegation that the
party "has used due diligence to ob-
tain the evidence of said [witness],
having a subpoena issued to the sheriff
of said county, and by said sheriff re-
turned not found," was not sufficient,
because, as the court said, " it does not
appear when the subpoena issued or
when it was returned."
2. Probability of Procuring Testimony.
The affidavit must show " the proba-
bility of procuring the testimony within
a reasonable time." Horner's Stat.
Ind. (1896), 410, 1781. See also
supra, note 3, p. 347. It is not sufficient
for the applicant to state that he be-
lieves the testimony of the witness can
be procured within a reasonable time,
where he gives no facts upon which
such belief is based, nor where the
facts stated do not warrant such belief.
Post v. State, 14 Ind. App. 452; Ohio,
etc., R. Co. v. Dickerson, 59 Ind. 317;
Robinson v. Glass, 94 Ind. 211. See
also Merrick v. State, 63 Ind. 330.
3. Not Absent by Connivance. "The
affidavit must further show that the ab-
sence of such witness has not been
procured by the act or connivance of
the [party in a civil case; defendant in
a criminal case], nor by others at his
request, nor with his knowledge and
consent." Horner's Stat. Ind. (1896),
410, 1781. See also supra, note 5,
P- 345-
4. The Statutory Requirements. The
requisites of an affidavit for continuance
by the defendant in a criminal case are
prescribed by Horner's Stat. Ind. (1896),
$1781. This provision is nearly iden-
376
Volume 5
6288.
AD JO URNMENTS.
6288.
In the La Grange Circuit Court,
November Sp. Term, iB70.
(Precedent in Jenks v. State, 39 Ind. 4.)*
State of Indiana
v.
Stephen Jenks.
Personally came into open court Mary Jenks, who, upon her oath,
says that she is the sister of the defendant; that George Rockwell is,
as she believes, a material witness for the defense; that he is a phy-
sician who has resided in Ontario, in said county of La Grange, where
the deceased Mallow and the defendant resided, and where the shoot-
ing took place; that he was well and intimately acquainted with the
deal with Homer's Stat. Ind. (1896),
410, which governs applications for
continuances in civil cases.
Application by Prosecuting Attorney.
Homers Stat. Ind. (1896), 1782, pro-
vides that " whenever the prosecuting
attorney desires to obtain a postpone-
ment of the trial of a criminal cause on
account of the absence of any witness
whose name is indorsed on the indict-
ment, such continuance shall be granted
on his official statement in manner and
form as specified in the preceding sec-
tion," which is quoted above in this
note; " but the defendant may require
the same to be in writing."
1. For a case holding that the prose-
cuting attorney's affidavit made an in-
sufficient showing of diligence to secure
the testimony of the absent witness,
see State v. Place, 127 Ind. 194.
The defendant was prosecuted for
murder and convicted, and a new trial
was granted because of a refusal to al-
low a postponement on this affidavit.
The witness was in good health when
the trial commenced and had promised
to attend, but was suddenly taken sick
so that he was unable to attend.
For a form of an affidavit held sufficient,
but which would now be defective for
omitting some of the formal averments
required by the statute now in force and
cited in the preceding note, see Gross
v. State, 2 Ind. 136.
Accompanying Affidavits. Accompa-
nying the foregoing affidavit were the
three following affidavits. They seem
to have had no weight, however, in
the determination of the case by the
supreme court :
" State of Indiana v. Stephen Jenks.
In the La Grange Circuit Court, Special
December Term, 1870.
Personally appeared in open court
Avery A. Shelden, and upon his oath
says, that George Rockwell, mentioned
in the affidavit of Mary Jenks, is, he
believes, unable to attend this court;
377
that he went for him today with a suit-
able conveyance; that said Rockwell,
being a physician, says that he is will-
ing to attend this court, but is, from
sickness, unable to attend court with-
out endangering his life.
A. Shelden.
Subscribed and sworn to before me
in open court this 26th day of Decem-
ber, 1870. John H. Rerick, Clerk."
"State of Indiana v. Stephen Jenks.
In the La Grange Circuit Court, No-
vember Special Term, 1870.
Personally appeared in open court,
Joseph D. Farrall, and upon oath says
that he and John Morris are thj attor-
neys of the defendant; that at the time
the trial of this cause was commenced
he was informed and believed that
George Rockwell, the person mentioned
in the affidavit of Mary Jenks, was then
in usual health; that he knew he was
a material witness for the defendant,
and had him duly subprenaed; that
since the trial began, as he is informed
and believes, the said Rockwell was
suddenly taken ill, and has been ever
since confined to his house; that he can-
not, without imminent danger, leave
his house or attend this court as a wit-
ness; that this affiant, from personal
conversation with said Rockwell, be-
lieves that the facts as set forth in the
affidavit of said Mary Jenks can be
proven by said Rockwell.
J. D. Farrall.
Subscribed and sworn to in open
court, this 26th day of December, 1870.
Jno. H. Rerick, Clerk."
" State of Indiana v. Stephen Jenks.
In the La Grange Circuit Court, No-
vember Special Term, 1870.
Personally appeared in open court
John Morris, one of the attorneys for
said defendant, who upon his oath says
that at the commencement of this trial
he was informed that George Rockwell,
the person mentioned in the affidavit of
Mary Jenks, would be present during
Volume 5.
6289. CONTINUANCES AND 6289.
defendant at the time of said shooting, and had been so acquainted
with him for some three years prior thereto; that he had been, for more
than two years, prior to said shooting, the physician of the defend-
ant, and as such had prescribed from time to time for the defendant
during said period; that said Rockwell has told on two occasions,
once in August, i870, and again about the 19th inst. (November) that
the defendant had been, in the opinion of said Rockwell, ever since he,
the said Rockwell, had lived in Ontario, insane; that she believes said
fact can be proven by the said Rockwell. She further says that she
believes that it can be proven by said Rockwell that the defendant,
for a period of more than two years, was suffering at times from
severe headache; that he frequently complained of a pain in his fore-
head; that he was, during said period, moody and depressed; that he
believed, without cause, that his neighbors and others, such men as
JohnB. Hou<e, Samuel P. Williams, and others, who did not know him,
were combined against him for the purpose of injuring him; that the
belief as to said conspiring was false, and not founded upon any
process of reasoning; that he also believed that he was enabled by
superhuman power to read men's thoughts; that he, defendant, stated
to Rockwell on the day of the shooting and within twenty-five minutes
of the time at which Mallow was killed, that he shot him because he
was compelled to shoot him; that God had required him to do it.
Said affiant further says that she believes said facts to be true; that
the said Rockwell has, as she believes, been duly subpoenaed to attend
this court as a witness; that he is not now in attendance; but is, and
has been, ever since the defense began, confined to his house by
sickness; that he cannot now leave his house without danger. She
further states that she is informed and believes that the said Rockwell
will be able in the course of five or six days to be present in court,
and testify. She further says that she has personally seen and talked
with said witness, and knows that he is not absent through the advice,
consent or connivance of the defendant, nor through the advice and
consent of others with the defendant's knowledge, or by his consent.
She further says that she believes the defendant to be now insane,
and therefore she makes this affidavit on his behalf.
Mary Jenks.
Subscribed and sworn to in open court this 26th day of December,
1 870.
Jno. H. Rerick, Clerk.
Form No. 6289.'
the trial of said cause as a witness for affidavit of Mary Jenks can be proven
and on behalf of the defendant; that by said Rockwell; that they are mate-
he understood he had been duly sub- rial, and that some of the facts cannot
poenaed as a witness, and that, as he be proven by any other witness as fully
was then informed, he was well and as by said Rockwell,
able to attend; that had he known that [John Morris.]
said Rockwell would not be able to at- Sworn to in open court, November
tend as a witness, he would not have 26, 1870.
consented to go into the trial of said John H. Rerick, Clerk."
cause; that from the information which 1. The form given in the text corn-
affiant has obtained from others, he be- bines the two affidavits for a continu-
lieves that the facts as set forth in the ance filed by the defendant in State v.
378 Volume 5.
6289. ADJOURNMENTS. 6289.
State of Iowa, \
Marshall County. J SS-
I, John N. Dakin, being sworn, say that I am defendant; 1 that I
cannot safely proceed to trial at the present term by reason of the
absence of material witnesses; that the names of said witnesses are
Joseph Dakin, Harriet Dakin, Edward Dakin and Andrew Dakin; 2
that their present whereabouts are unknown to me; that they resided
until very recently in Liberty township, Marshall county, Iowa, and
had resided in said township nearly two years, and in said county
nearly twenty years; that said Harriet Dakin is wife of said Joseph
Dakin and said Edward and Andrew are their sons, and residing all
in one family; that they removed from said Liberty township on or
about the fourteenth day of October, i&78, with the intention, as I am
informed and believe, to go to Jewell county, Kansas? that their
intention to so remove before the present term of this court was not
known to me; that I did not learn or know or have any information
of their departure or intention to depart before the present term of
this court until the morning of Saturday, the twenty-sixth day of
October, 1 87#, when I first learned that they had gone; that I saw
and conversed for a moment with said Joseph a short time before
he went away, in the presence of several parties, at the door of
the jail in this county, through the wicket; that I had opportunity
to do no more than barely speak to him, and told him I would
want him as a witness on the trial of the case; he replied that
the case would not be tried here, and that he would not be
needed at the next term of this court; that it was then my inten-
tion, and I believe he knew of it, to apply for a change of venue;
that I did not then know whether my trial would come at this
term of the court and did not know or expect he intended to leave/
here immediately and before this court would convene; that I did not
have said witness subpoenaed because I did not then know whether
said cause would be tried at this term of court or when it would be
tried, and because I supposed that as they resided in the county I
could procure their attendance upon a few hours' notice, and because
I expected my application for a change of venue would be granted;
that I was surprised my application for said change of venue was
Dakin, 52 Iowa 395, where it was held v. Savery, 4 Iowa 241; State v. Nash, 7
reversible error to deny the application Iowa 347; State v. Barrett, 8 Iowa 536;
for a continuance. The defendant was State v. Farr, 33 Iowa 553.
indicted fora murder alleged to have 1. Who may Make Affidavit. The
been committed on March 27th, 1878. motion " must be founded on the affi-
He was brought to trial at the October davit of the party, his agent, or at-
term, 1878, and on October 28th he torney." Miller's Anno. Code Iowa
filed his motion for continuance, sup- (1890), 2750.
ported by affidavit, and on the follow- 2. Names and Residences. The affi-
ing day filed an additional affidavit, davit must state the name and resi-
which, as above stated, is substantially dence of the witness, " or if that be
incorporated herein. not known, a sufficient reason why not
For other cases in which it was held known." Miller's Anno. Code Iowa
that the showing for a continuance on (1890), 2750, subd. i; State v. Tilgh-
the ground of absent witnesses was man, 6 Iowa 496. See also supra, note
sufficient to constitute it reversible i, p. 334.
error to overrule the motion, see Welsh
379 Volume 5.
6289.
CONTINUANCES AND
6289.
refused by the court, and that my trial would come on this term, and
because of all said matters I did not have subpoenas issued for said
witnesses. 1 That I expect to prove by said witnesses Edward and
Andrew the following facts: 2 On the evening of the alleged murder of
John K. Stough they were at my barn looking for a horse that had
formerly been owned by me, and which they expected to find at my
barn, and that on their return I accompanied them together to their
father's house, a distance of about five miles from my residence, and
from the place where the body of John K. Stough was found the next
morning; that in company with them I started on horseback all on
horseback -from my barn early in the evening, at or before eight
o'clock; that we went out directly to their father's, Joseph Dakiris
house; that I remained there a few minutes for the purpose of seeing
1. Diligence to Obtain Testimony.
The affidavit must state "efforts, con-
stituting due diligence, which have
been used to obtain such witness or
his testimony." Miller's Anno. Code
Iowa (1890), 2750, subd. 2, and "a
continuance shall not be granted for
any cause growing out of the fault or
negligence of the party applying there-
for." Miller's Anno. Code Iowa (1890),
2749-.
" It is not sufficient to state generally
that due diligence has been used; but
the affiant should set forth and specify
what has been done, that the court
may judge of the diligence." Brady
v. Malone, 4 Iowa 149. See also State
v. McDonough, (Iowa, 1897) 73 N. W.
Rep. 357, and supra, note 5, p. 339.
"A party is held to more care and
diligence to procure by deposition the
testimony of a witness who is a non-
resident and beyond the process of the
court than he is required to employ in
the case of a resident witness who is
not likely to be beyond the process of
the court." Peck v. Parchen, 52 Iowa
46, where the averments of the affidavit
in respect to diligence, which were
held insufficient, are set forth at length;
Friske v. Berryhill, 10 Iowa 203.
If the affidavit states that the absent
witness is sick, it should also appear
that his sickness was not known to the
party in time to take his deposition.
Adams v. Peck, 4 Iowa 551.
An affidavit stating that a subpoena
has been issued should also state the
date when it was issued. State v.
Farrington, 90 Iowa 673.
For other cases where it was held
that sufficient diligence was not shown
see Hardin v. Iowa R., etc., Co., 78
Iowa 726; Foster v. Hinson, 76 Iowa
714; George v. Swafford, 75 Iowa 491;
Argall v. Pugh, 56 Iowa 308; State v.
Bell, 49 Iowa 440; State v. Hayden, 45
Iowa n; State v. Spurbeck, 44 Iowa
667; Chicago, etc., R. Co. v. Heard, 44
Iowa 358; Finch v. Billings, 22 Iowa
228; State v. Cross, 12 Iowa 66; Thurs-
ton v. Cavenor, 8 Iowa 155; Widner v.
Hunt, 4 Iowa 355; State v. Belvel, 89
Iowa 405.
2. Facts and Materiality. The affida-
vit must state " what particular fact, as
distinguished from legal conclusions,
the affiant believes the witness will
prove." Miller's Anno. Code Iowa
(1890), 2750, subd. 3; Chicago, etc.,
R. Co. v. Heard, 44 Iowa 358; State v.
Tilghman, 6 Iowa 496. See also supra,
note, 7, p. 335 ft seq.
The facts expected to be proved must
be stated with such certainty and dis-
tinctness that the opposite party, by
admitting that the witness will so
testify, may avoid a continuance of the
case. A statement that the party ex-
pects to prove all the allegations in
his pleading is too general. Olds v.
Glaze, 7 Iowa 86; Jackson v. Boyles,
64 Iowa 428.
Materiality. The affidavit must
show that the facts are material and
relevant. State v. Falconer, 70 Iowa
416; Finch v. Billings, 22 Iowa 228;
State v. Bennett, 52 Iowa 724.
Thus, in State v. Williams, 8 Iowa
533, the court said, in commenting ad-
versely on the defendant's affidavit:
" It was necessary for the defendant
to connect the testimony expected to be
given by the absent witness with the
offense with which the defendant was
charged."
The court will not presume that the
testimony will have any more rele-
vancy to the issue than is shown by
the facts stated in the affidavit. State
v. Falconer, 70 Iowa 416; State v.
Clark, 69 Iowa 196.
380
Volume 5.
6289. ADJOURNMENTS. 6289.
if I could purchase a horse from Joseph, and between eight or nine
o'clock nine probably near nine, I left his house; that when they
came to my barn I was there at the barn and was preparing to go to'
Joseph Dakin s, getting my horse ready for that purpose, and that my
wife was there with me at the time; that I also expect to prove by
said Andrew and Edward Dakin that as they were approaching my
residence on the evening referred to they met the deceased (StougK)
only a short distance from my residence; that said Stough was on foot
going in a direction from my residence, and in the direction in which
the body was found the next morning; that I expect to prove said
facts by each of said witnesses and do not know of any other witness
or witnesses by whom I can prove the same facts, 1 except that I can
prove by my wife that I was at the barn when they came, and by
Joseph Dakin and his wife that I was at their house; that I expect to
prove by Joseph Dakin that between the hours of eight and nine o'clock
of the evening of the night on which John K. Stough was killed, I was
at his house; that he and his wife had retired to bed before I arrived
there; that I called him up and I conversed with him a few minutes
about purchasing a horse from him, and then left about nine o'clock
or before. That I expect to prove by said Harriet Dakin that she
knew my voice and heard me call, and heard me speaking with her
husband, who stood in the door with the door open; that I also stood
near the door; that it was about nine P. M.
That I am advised by counsel said facts are material ; that said facts
are true, 2 and I do not know of any other witnesses by whom all of
said facts can be proved; that this application is not made for delay
merely, but that justice may be done; that I expect to be fully able
to procure the testimony of said witnesses by their personal attend-
ance or by their depositions by the next term of this court; 3 that^ft
has been impossible for me since I learned that they had left the
county to procure their depositions, and that I do not know at
present where their depositions could be conveniently taken, nor that
they could be taken at all before their arrival in Kansas; nor am I
certainly advised as to the particular locality where they will go,
except that it is understood by their friends that they have gone to
Jewell county, Kansas.
1. No Other Witness to Prove Same believes the facts to be true to which
Facts. The affidavit must state that it is alleged the absent witness will
the affiant " knows of no other wit- testify. Miller's Anno. Code Iowa
ness by whom such facts can be fully (1890), 2750, subd. 3. See also supra,
proved." Miller's Anno. Code Iowa note 2, p. 342.
(1890), 2750, subd. 3; Thompson v. 3. Belief that Testimony can be Pro-
Abbott, ii Iowa 193; State v. Williams, cored. The affidavit must state "facts
8 Iowa 533. See also supra, note 2, p. showing reasonable grounds of belief
343. that his attendance or testimony will be
In Welsh v. Savery, 4 Iowa 241, it procured at the next term." Miller's
was held (Stockton, J., dissenting) Anno. Code Iowa (1890), 2750, subd.
that an affidavit concluding with the i; State v. Farrington, 90 Iowa 673.
statement that affiant knows of no per- See also supra, note 3, p. 347.
son by whom such facts can be "aj A mere statement of belief without
fully proved " was a sufficient com- showing facts to warrant it is insuffi-
pliance with the statute. cient. State v. Rorabacher, 19 Iowa
2. Testimony Believed to be True. 154.
The affidavit must state that the affiant
381 Volume 5.
6290. CONTINUANCES AND 6290.
That I did not make this application for continuance on the second
day of the term because 1 it was not then certain that the cause would
be tried at this term, and for the reason that I did not then know of
the absence or intention to be absent, of the four witnesses named in
my original affidavit; that after the determination of the motion for
a change of venue, on Saturday, the sixth day of the term, I sent for
my attorneys to consult with them in reference to the matter of ask-
ing for a continuance on account of the absence of said witnesses
and other matters pertaining to my defense, when I learned that H.
C. Henderson and James Allison, my attorneys, who have had principal
charge of my defense, were absent, Mr. Allison procuring affidavits
to support the change of venue, and Mr. Henderson in attendance at
the U. S. Circuit Court at Des Moines, and Mr. Merriman, my other
attorney, who has had very little to do with my defense in this case,
was engaged in the trial of a cause in this court, and was unable to
give any attention to my case. I had no other attorneys employed
in the case, and was unable to procure the preparation of a motion
and affidavit for continuance until the date hereof, and that I have
caused said application to be made as soon as practicable after I
learned that it would be necessary to make the same; that I sent for
my attorneys early this morning and informed Mr. Henderson, who
came to the jail to see me, of the absence of said witnesses, and the
necessity of making an application for a continuance, and the same
was thereafter made as soon as practicable.
[John IV. Dakin.
Sworn to before me and subscribed in my presence by John N.
Dakin, this 28th day of October, iS78.
George Jones, Clerk of District Court.]
Form No. 6290.'
(Precedent in State z>. Painter, 40 Iowa 298. ) 3
1. Excuse for Delay in Filing Motion. Iowa 618; Bays z>. Herring, 51 Iowa
"The motion must be filed on the 286; Chicago, etc., R. Co. v. Heard, 44
second day of the term if it is then cer- Iowa 358; Lucas v. Casady, 12 Iowa
tain that it will have to be made before 567, holding it reversible error to con-
the trial, and as soon thereafter as it tinue a case on an affidavit defective in
becomes certain that it will so need to this particular.
be made, and shall not be allowed to be If the motion is filed during the term
made when the cause is called for trial, and it does not appear by the record on
except for cause which could not, by what day of the term it was filed, it will
reasonable diligence, have been before be presumed on appeal in favor of the
that time discovered; and if made after ruling of the court denying a continu-
the second day of the term the affida- ance that it was not filed in time where
vit must state facts constituting an the affidavit alleges no excuse for de-
excuse for the delay in making it.'' lay. Woolheather v. Risley, 38 Iowa
Miller's Anno. Code Iowa (1890), 486.
2752. 2. See the notes to Form 6289, supra.
For cases where an affidavit filed State v. Miller, 65 Iowa 60, is a case
after the second day of the term was where an affidavit for a continuance
held defective for not alleging an was filed by the prosecuting attorney
excuse for the delay see State v. and the motion properly sustained.
McDonough, (Iowa, 1897) 73 N. W. 3. On appeal by the state it was held
Rep- 357; Bell v. Chicago, etc., R. Co., to be error to refuse a continuance until
64 Iowa 321; Randall v. Fockler, 52 the next day on this affidavit.
382 Volume 5.
6290. ADJOURNMENTS. 6290.
State of Iowa, }
I gc
Monona County. \
I, C. H. Lewis, on oath, depose and say that I am District Attor-
ney, 4th Judicial District, Iou>a, and the attorney for the State in each
of the above entitled actions. Thaty. C. Hollister zntijohn Fowler
are material witnesses on the part of the State, without whose testi-
mony I cannot safely proceed to trial in said actions, or either of
them.
That after the indictments in these cases, and on the 18th day of
July, 1874, I procured a subpoena to be issued from the office of the
Clerk of this Court for said witnesses in each of said cases. And
that on the 18th day of July, i87^, the said subpoenas were duly and
legally served upon each of the witnesses, Hollister and Fowler, at
Harrison county, Iowa, as will more fully appear by reference to the
returns on the subpoenas filed in this court in the above entitled cases,
to which reference is here made.
That said witnesses, and each of them, have failed to attend upon
this court, in obedience to said subpoenas. That said witnesses, and
each of them, now reside at Missouri Valley, Harrison county, Iowa,
distant about forty miles, and that said witnesses are at home,
as this affiant is informed and believes. And that their attendance
can, as I believe, be had at this term of court, and on tomorrow
morning, by attachment. Though I have no positive assurance that
said witnesses will be present on tomorrow, or at this term of this
court.
And I further depose and say that said witnesses can be held to
testify in each of said cases at the next term of this court.
And I further state that I expect to prove by the witness John
Fowler that he purchased of the defendant, Ed. Lindley, the property
described in the indictments herein. That he purchased the said
property on the day after the same was stolen. That said property
when purchased was in the possession of the defendant Lindley, and
the other defendants herein. That this defendant Lindley had
secreted the property after he arrived at the town of Missouri Valley,
in Harrison county, where said Fou<ler then resided and was engaged
in the butcher business. And that said Lindley moved the cattle from
the place where he stole the same to the town of Missouri Valley in
the night-time, and in a secret manner.
And I further state that I expect to prove by the witness J. C. Hol-
lister that he came by purchase into the possession of an animal
stolen by defendant at the time the cattle described in these indict-
ments were stolen. And that said witness will identify said defend-
ant as the party who had said animal on the day, or soon after, said
property was taken.
And I further state that I believe all of the above stated facts to
be true. And that I know of no other witness by whom the same
can be fully proved.
C. H. Lewis.
Sworn to before me and subscribed in my presence by C. H. Lewis,
this 21st day of July, 1874.
John K. McKaskey, Clerk of District Court.
383 Volume 5.
6291.
CONTINUANCES AND
6291.
Form No. 6291.'
(Precedent in State v. Maddox, 117 Mo. 670.)*
In the Circuit Court of Shelby county, Missouri, April term,
1. Necessity of Oath or Affidavit. A
motion to continue a cause on the part
of the defendant on account of the
absence of evidence must be supported
by oath or affidavit. Mo. Rev. Stat.
(1889), 4181.
As to the necessity of an affidavit
unless the state consents that the state-
ment may be upon oath orally see
State v. Reilly, 4 Mo. App. 394.
By Prosecuting Attorney in Behalf of
State. "If the application for a continu-
ance is by the state, the prosecuting
attorney shall state in writing, under
his oath of office, and according to his
best information and belief, the same
facts required to be stated in the affida-
vit of the defendant." Mo. Rev. Stat.
(1889), 4182.
For the substance of an affidavit by
the prosecuting attorney, which was
held to be insufficient in its statement
of what the absent witness would tes-
tify to, see State v. Pinnell, 93 Mo. 480.
2. The defendant in this case was in-
dicted for robbery in the first degree
and convicted. A new trial was
granted for refusing a continuance, the
court remarking that " the defendant's
affidavit meets every requirement of
section 4181, Revised Statutes 1889."
This section contains almost the same
provisions as the section prescribing the
requirements of affidavits for continu-
ances in civil cases. See notes to Form
No. 6272, supra.
Other Approved Forms. In State v.
Farrow, 74 Mo. 532, the defendant was
indicted for robbery, and it was held
reversible error to refuse his application
for a continuance on November I4th,
1881, which was supported by an affi-
davit, omitting caption, signature and
jurat, as follows:
" That he cannot safely proceed in
the trial of said cause in the absence of
the following witnesses, who are absent
without connivance, knowledge or con-
sent, to wit: Henry Baysinger, Mrs.
Henry Baysinger, Buck Dareaux, and
Caleb Berry; that Buck Dareaux re-
sides in Montgomery county, Caleb
Berry in Audrain county, and the others
in Callaway county, Missouri; that
the indictment in said cause was only
filed herein on the I2th of this month
and found at present term of this court;
that he had a subpoena for the wit-
nesses in this county issued and deliv-
ered to the sheriff; that he has not had
time since the filing of said indictment
to get said witnesses from Audrain and
Montgomery county here; that he be-
lieves he would prove by said absent
witnesses that defendant was at Joseph
Farrow's, three or four miles off, when
the alleged offense was committed; and
he further says that such statements are
true; that he has no witness present,
nor does he know of any other witness
or witnesses by whom he can prove the
same facts; that he has not had time to
procure the attendance of said absent
witnesses; that he expects to have them
present at the next term of this court;
that the continuance is not asked for
vexation or delay merely, but in order
that a fair trial may be had, and com-
plete and substantial justice done; that
the evidence of said witnesses is mate-
rial; that he cannot prove the same
facts by any other witness whose testi-
mony can be procured at this term of
court."
In State v. Bradley, 90 Mo. 160, the
defendant was charged with assaulting
and cutting one Petty with a knife. A
new trial was granted because of a re-
fusal of continuance on his affidavit,
omitting caption, signature and jurat,
as follows:
"Thomas Bradley, being sworn, states
that he cannot safely go to trial at this
term of court for the want of material
testimony that is absent without his
connivance, or approval, and that this
application is not made for vexation or
delay, but for the purposes of justice,
and that if a continuance be granted him
he can, as he verily believes, procure
said testimony by the next term of this
court. The name of the absent witness
is Walter Billings, who has, up to
within two months, lived in Greene
county, near this affiant; at that time
he moved into the city of Springfield,
and affiant has been under the impres-
sion all the time that he still lived in
said city. Affiant caused a subpoena to
be issued for him a few days ago, and
placed same in the hands of the sheriff
of Greene county, and verily believed
that the sheriff would find and serve
him immediately with said subpoena,
384
Volume 5.
6291.
AD JO URN MEN TS.
6291.
The defendant, Morgan Maddox,^ comes and moves the court to
grant him a continuance in this cause to the next term of this court,
and as grounds of this motion states the following: * * * 2
The defendant states that Malinda Maddox* the wife of the
defendant, Morgan Maddox, is a material witness on behalf of the
defendant, Morgan Maddox, in this cause. That her residence is at
the town of Huntington in Rails county, Missouri, where she now is. 3
That on the night of the twenty-fifth day of August, iS92, the said
Malinda Maddox had an abortion or miscarriage about twelve o'clock
on said night. She then had a severe chill and her temperature
arose to one hundred and five degrees, her pulse was one hundred and
fifty, she showing and having all the symptoms of septicaemia, result-
ing from the absorption of a putrid foetus and its membranes. She
is now confined to her room, and nearly all the time in her bed,
under the order of her physician, and it is the opinion of her physi-
cian, S. Mattox* a regular registered and practicing physician, who
is now attending her, and who has been attending her since the
but on yesterday evening affiant was
informed by the sheriff that he could
not find said Walter Billings. That if
the said witness was here he would
testify as follows: ' My name is Walter
Billings. I know Arch Petty and the
defendant. That on or about the 8th
of September, 1883, I was present at
th? barn of defendant when defendant
and Petty had a difficulty. I was stand-
ing near them. They came walking
through the barn; the defendant was
whittling with his knife on a small
stick; when they got near the front
part of the barn, I learned from their
conversation that they were quarrelling
about a bill, Petty claiming that de-
fendant owed him five dollars for re-
moving a dead horse defendant
claiming that the contract price was
two and one-half dollars. Petty got
very angry and finally caught hold of
defendant and threw him around
against the side of the barn, and held
him there with his left hand, which was
on defendant's coat collar, or hold of
his throat, and with his right hand he
reached back to his hip pocket as
though he was reaching for a pistol.
Defendant had told Petty to let him go,
and defendant then, with his knife that
was still open, reached round and
under and cut Petty on his right arm.'
Affiant knows that said absent witness
will so testify, because said witness has
so informed affiant. Affiant knows of
no witness that he can so well prove
the facts above set forth as he can by
the said Billings, and that affiant be-
lieves said testimony to be true."
For the substance of another form
held good see State v. Lewis, 74 Mo.
225.
The affidavit which was set forth and
approved in State v. Maguire, 69 Mo.
197, was drawn under a statute differ-
ing in some particulars from the statute
now in force, and omitted some of the
averments which would now be neces-
sary.
1. Who may Make Affidavit. An
"oath or affidavit of the defendant or
some reputable person in his behalf" is
required. Mo. Rev. Stat. (1889), 4i8iy
2. Here followed a statement as a
first ground for continuance that one of
the defendant's counsel could not be
present at this term of court, etc., as
shown in Form No. 6262.
3. Name and Residence of Witness.
The affidavit must give the name of the
witness and "where he resides or may
be." Mo. Rev. Stat. (1889), 4181. See
also supra, note r, p. 334. In Stall
v. Mitchell, 98 Mo. 657, the affidavit
was criticised because it did not give
the name of the witness, although it
stated that his name was unknown.
And in State v. Underwood, 76 Mo.
630, it was held defective because, al-
though it disclosed that the defendant
knew the names of the witnesses, it
failed to give the name of any of them,
and because it did not state the resi-
dence of the witnesses or that their
residence was unknown.
4. The affidavit was accompanied by
a certificate of this physician, which
will be found in Form No. 6305. That-
sickness is best established by the affi-
davit of a physician see Smith v. Smith,
132 Mo. 686.
5 E. of F. P. 25.
385
Volume 5.
6291. CONTINUANCES AND 6291.
time of the said abortion, that it would not be safe for her, under
the most favorable circumstances, to leave her home under six weeks
from the time said abortion took place. And this affiant says her
condition is such that it would not be safe, under the most favorable
circumstances, for her to leave her home and be present at the trial
of this cause under six weeks from the time said abortion took place.
This affiant further says that said Malinda Maddox has been so ill
ever since said abortion that she could not give her deposition in
this cause without endangering her life. That this cause was set for
trial in this court in November, iS91, at the October term, iS91, of this
court, on the twenty-third day of November, iS91.
That this defendant caused a subpoena to be issued from the office
of the clerk of this court on the thirteenth day of November, i891, for
said Malinda Maddox, and placed said subpoena in the hands of the
sheriff of Rails county, Missouri, for service on said witness.
That said subpoena was duly served on said Malinda Maddox, during
said trial, by the said sheriff on the twenty-fifth day of November,
\W1, in Rails county, Missouri, and that said Malinda Maddox obeyed
said subpoena and appeared in this court at said time in this cause,
and after a severance as to the defendants, Maddox and Whitecotten,
testified on behalf of the co-defendant, Frank Whitecotten, on his trial
at said term of this court, and that the trial of this cause had been by
this court regularly continued from the said last mentioned term
until this time, and it was the duty of said witness under the statute
to attend as a witness on behalf of this defendant on the trial of this
cause at the time without further subpoena. 1
1. Diligence to Obtain Testimony. The For criminal cases where theapplica-
affidavit must show due diligence, and tion was properly denied for want of
state what diligence has been used to sufficient diligence see State v. Howell,
obtain the testimony. Mo. Rev. Stat. 117 Mo. 307. where the affidavit is given
(1889), 4181. See supra, note 5, p. 339. substantially in full; State v. Tatlow,
The averments of the affidavit must 136 Mo. 682; State v. Murphy, 46 Mo.
be construed most strictly against the 430; State v. Mitchell, 98 Mo. 657,
affiant. Langener v. Phelps, 74 Mo. where the affidavit is given in full;
190, where the affidavit, pronounced State v. Hays, 24 Mo. 369; State v. Car-
insufficient, was given in full, the court ter, 98 Mo. 176; State v. Banks, 118 Mo.
saying: " Not a particle of diligence 117; State v. Dusenberry, 112 Mo. 277;
was used by the plaintiff (applicant). State v. Burns, 54 Mo. 274; State v.
The witness lived in a foreign jurisdic- Bryant, 93 Mo. 273; State v. Lange, 59
tion, yet no effort was made to be ready Mo. 418, where the affidavit is given in
for trial by taking his deposition; nor full; States. Lawther, 65 Mo. 454; State
when he came within the jurisdiction of v. Whitton, 68 Mo. 91 ; State v . Kring, 74
the court was any subpoena served Mo. 612; State v. Emory, 79 Mo. 461;
upon him." State v. Wilson, 85 Mo. 134; State v.
For civil cases where sufficient dili- Good, 132 Mo. 114; State v. Pagels, 92
gence was wanting see English v. Mul- Mo. 300; State v. White, 126 Mo. 591,
lanphy, I Mo. 780; Hamiltonsz/. Moody, where the affidavit stated that a sub-
21 Mo. 79; Cline v. Brainard, 28 Mo. pcena was served on the " day of
341; States. Bennett, 31 Mo. 462; Harris April." "For aught that appears,"
v. Powell, 56 Mo. App. 24; Schultz v. said the court, " it may have been on
Moon, 33 Mo. App. 329; Pier v. Hein- the very day of the trial or the day
richoffen, 52 Mo. 333; Wood v. St. before."
Louis, etc., R. Co., 58 Mo. 109, where For a case where the affidavit dis-
the affidavit is given in full. Leabo v . closed sufficient diligence see State v.
Goode, 67 Mo. 126; Blair v. Chicago, Walker, 6q Mo. 274.
etc., R. Co., 89 Mo. 383. On a second application, on account
386 Volume 5.
6291. AD JO URNMENTS. 6291.
That said Malinda Maddox will testify on the trial of this cause, if
present, as follows: 1 "I am the wife of the defendant Morgan Mad-
dox, and was his wife on the twenty-first day of December, iS90, at the
time of the alleged robbery of Leland McElroy, and was living with
said Maddox as his wife at his home in the town of Huntington, Mo.,
about one and a half miles from the place of said alleged robbery."
That she was at home all of the afternoon and evening and night
of said December 21, iS90.
That this defendant, at the hour of six o'clock in the evening of
said December 21, iS90, was present at his and her home in said town
of Huntington, and took supper there shortly after said hour, and that
said Morgan Maddox remained at their said home from said hour of
six o'clock on said evening until the hour of eight o'clock on the night
of said December 21, iS90, at which last mentioned time Maje Mad-
dox announced to the witness and said Morgan Maddox, at their said
home, that Leland McElroy had been robbed on said night, except
for a space of time not exceeding twenty minutes, and that during said
twenty minutes, said Morgan Maddox was going to attend to their
horses.
That said Morgan Maddox was not absent from said house longer
than said space of twenty minutes from said hour of six o'clock until
after said Morgan Maddox was notified at his home of said robbery.
That the testimony of Leland McElroy and Mary McElroy, who are
in attendance on this court as witnesses for the prosecution in this
cause, will be that said robbery of said Leland McElroy, with which
said defendant stands charged, occurred between the hour of six
o'clock and eight o'clock on said December 21, i&90, in the evening of
said day, about one and a half miles from the said home of the said
defendant. /
That the testimony of said Malinda Maddox, as above set forth,
tends to prove and does prove a complete alibi for this defendant as
to said robbery.
of the continued absence of a witness same particularity as was necessary be-
who had been subpoenaed prior to the fore the supreme court ruled that the
first application, the affidavit ought to state could not deprive the defendant
show that the applicant has applied of a continuance by admitting what the
for an attachment to compel the at- absent witness will testify to. State v.
tendance of the witness. State v. An- Strattman, 100 Mo. 540, where the sub-
drews, 76 Mo. 101. stance of the insufficient affidavit is set
1. Statement of Expected Testimony forth.
and Materiality Thereof. The affidavit A mere statement that the evidence
must show the materiality of the ex- is material is insufficient. State v.
pected testimony and what facts the Strattman, 100 Mo. 540; State v. Pagels,
applicant believes the witness will 92 Mo. 300.
prove. Mo. Rev. Stat. (1889), g 4181. If the evidence will not be relevant
See also supra, note 7, p. 335 et seq. except on the issue of insanity, the affi-
" Such an application must be drawn davit must state that insanity is a pro-
more carefully than a pleading and posed defense. State v. Pagels, 92 Mo.
must state the facts relied on specifi- 300; State v. Bryant, 93 Mo. 273; State
callyand not mere conclusions of law." v. Mitchell, 98 Mo. 657.
States. Good, 132 Mo. 114. See also If the facts stated show that the evi-
State v. Hilsabeck, 132 Mo. 357, and dence would be immaterial or irrelevant,
particularly State v. Pinnell, 93 Mo. the application will be denied. State v.
480. It must stale the facts with the Dale, 89 Mo. 579.
387 Volume 5.
6291.
CONTINUANCES AND
6291.
That the testimony of said LelandMcElroy, as the prosecuting wit-
ness m this cause, will be that said Morgan Maddox was present at
the time and place of said robbery, participating therein
That the testimony of Malinda Maddox, as above set forth, is
material to the issue of this cause on behalf of the defendant, Mor-
gan Maddox.
That this defendant has used due diligence to obtain the testimony
of said Malinda Maddox, on this trial of this cause. That the testi-
mony of said witness can be procured on the trial of this cause by
and at the next term of this court, 1 and that said Malinda Maddox
will prove facts as above set forth, and this defendant believes said
facts, as above set forth, as said witness's testimony are true, 2 and
that this defendant is unable to prove said facts by any other witness
whose testimony can be as readily procured, 3 and that said witness,
Malinda Maddox, is not absent by the connivance, procurement or
consent of this defendant, 4 and that said Malinda Maddox is absent
from this trial solely because said witness, Malinda Maddox, is sick
and unable to attend at the trial of this cause, and that this appli-
cation for continuance is not made for vexation or delay merely, but
to obtain substantial justice on the trial of this cause. 5
Morgan Maddox.
State of Missouri, )
County of Shelby. \ SS>
Morgan Maddox, the above named defendant, being duly sworn, on
1. Probability of Procuring Testimony.
The affidavit must show " the proba-
bility of procuring his testimony and
within what time." Mo. Rev. Stat.
(1889), 4181. See also supra, note 3,
p. 347. This requirement was enforced
in State v. Wilson, 85 Mo. 134, and State
v. Aired, 115 Mo. 471.
An affidavit stating that the witness
was " late of this state, and now out of
the state, and will in all probability be
back," was insufficient. Freligh v.
Ames, 31 Mo. 253.
2. Belief that Testimony is True. The
affidavit must state that the applicant
believes the facts to which the absent
witness will testify are true. Mo. Rev.
Stat. (1889), 4181. See also supra,
note 2, p. 342. For want of this aver-
ment affidavits were held defective in
State v. Dusenberry, 112 Mo. 277; State
v. Bryant, 93 Mo. 273; State v. Aired,
115 Mo. 471; State v. Underwood, 76
Mo. 630. State v. Maguire, 69 Mo. 198,
holding that this averment was un-
necessary where the defendant had
pleaded not guilty, was decided before
the enactment of the provision above
cited.
3. Unable to Prove Same Facts by
Others. The affidavit must state that
the defendant "is unable to prove such
facts by any other witness whose testi-
mony can be as readily procured."
Mo. Rev. Stat. (1889), 4'i8i. State v.
Aired, 115 Mo. 471; State v. Lett, 85
Mo. 52; State v. Heinze, 45 Mo. App.
403. See also supra, note 2, p. 343.
In Freleigh v. State, 8 Mo. 606, the
affidavit stated that there was no other
witness in attendance by whom the
same facts could be established, and
was held . insufficient for omitting to
aver that the facts could not be proved
by any other person whose attendance
could have been procured.
4. Witness Not Absent by Connivance,
etc. The affidavit must state "that
the witness is not absent by the con-
nivance, procurement or consent of the
defendant." Mo. Rev. Stat. (1889),
4181; State v. Bryant, 93 Mo. 273.
See also supra, note 5, p. 345.
5. Application Not Made for Delay, etc.
The affidavit must state "that the
application is not made for vexation or
delay merely, but to obtain substantial
justice." Mo. Rev. Stat. (1889), 4181;
State v. Heinze, 45 Mo. App. 403.
Barker v. Patchin, 56 Mo. 241, where
the court said: " An affidavit for con-
tinuance ought positively to negative
an inference that it is made for vexa-
tion or delay." See also supra, note 7,
P- 347-
388
Volume 5.
6292. ADJOURNMENTS. 6292.
his oath states that the facts stated in the foregoing application for
a continuance are true.
Morgan Maddox.
Subscribed and sworn to before me this September 5,\W2.
Frank Dimmitt, Clerk.
Form No. 6292.'
(Precedent in State v. Metcalf, 17 Mont. 420.)*
[State of Montana,
County of Beaver head.
Slate of Montana plaintiff, 1
^/Wf/Tdefendant. Judicial District.]
Paul Metcalf, being first duly sworn, on oath deposes and says:
That he is the defendant in the above entitled cause. That the
information in said cause was filed in this court charging affiant with
the crime of murder on the 23d day of February, i895, and that
affiant was arrested in the state of Missouri on the 27th day of
December, i895, and was brought to Beaverhead county, Montana,
immediately thereafter and lodged in the county jail of said county,
where he has ever since been, and is now, confined. That ever since
affiant's incarceration in jail, through the efforts of his counsel and
friends, he has been preparing for this trial, as hereinafter detailed.
That notwithstanding the efforts of defendant and his friends to be
prepared for said trial, he cannot safely go to trial at this term for
the following reasons, to wit, the absence of witnesses and evidence
material to defendant, and which defendant has been unable to pro-
cure at this term of the court. That Alden Harness is a witness
material to defendant. That defendant could prove by said Harness,
if present as a witness, that the deceased, Frank Hunter, was killed
at his saloon, at Medicine Lodge, in Beaverhead county, on the after-
1. In Civil Cases. Mont. Code Civ. cause therefor." Section 2011 provides
Proc. (1895), 1039, reads in part as that " any cause which would be consid-
follows: " A motion to postpone a trial ered a good one for a postponement in
on grounds of the absence of evidence a civil case is sufficient in a criminal
shall only be made upon affidavit case."
showing materiality of the evidence By the State. Section 2012, Mont,
expected to be obtained and that due Pen. Code (1895), provides that "the
diligence has been used to procure it. state may obtain a postponement for the
The court may also require the moving same reasons * * * as the defend-
party to state upon affidavit the evi- ant and be subject to the same re-
dence which he expects to obtain " strictions; the county attorney, or any
Rule No. 12 of the district court (4th one acquainted with the facts, may
Jud. Dist.) provides that "the party make the proper affidavit."
applying for a continuance shall state 2. It was held that the showing
in the affidavit the names of the wit- made by the following affidavit entitled
nesses and the evidence he expects to the defendant to a continuance, and
obtain, otherwise the affidavit and the order of the court denying his ap-
motion shall be overruled." plication therefor was error. For the
In Criminal Cases By the Accused. requisites of affidavits generally and
Mont. Pen. Code (1895), 2010, pro- cross-references to proper forms of
vides for continuances by the defend- affidavits under various circumstances
ant filing his affidavit " showing good see the notes to Form No. 6272, supra.
389 Volume 5.
6292. CONTINUANCES AND 6292.
noon of August 12, i&94, by affiant. That affiant and said Harness
earlier in the day had been to said saloon, and in company with other
persons there present had taken several drinks of whisky or other
liquor. That this affiant and said Harness had left the saloon
together, and parted from said Hunter without any difficulty. That
after affiant and said Harness had been gone some time, affiant dis-
covered that he had left his gloves at said saloon, and proposed to
return and get them. That said Harness and this affiant, in com-
pany, and on horseback, returned to said saloon, and dismounted
and entered the same. That Metcalf was a little in advance of and
to the right of said Harness as they entered into said saloon, and
that they passed one person, called " Irish Jack" sitting on or near
the saloon doorsteps. That no one was in the saloon when said Met-
calf and Harness entered except Hunter. That upon said Hunter
seeing Metcalf enter, and when said Metcalf was a few feet within
said saloon, and three or four feet from the front door, Hunter said
to Metcalf, " Get out of my saloon, or I will kill you, you son of a
bitch;" to which Metcalf answered and said, "I want my gloves; that
is all I want." That as Hunter spoke to Metcalf, Hunter started to
go behind the bar in said saloon, and in doing so was facing rather
towards Metcalf and the front of the building. That Hunter spoke
in a loud, angry and very threatening manner to Metcalf, and was in
the act of reaching under the bar, where he always kept a revolver
or pistol, and at the same time was watching said Metcalf, and was
slightly stooping, and watching Metcalf, with his head above the
counter. That Hunter s manner was extremely threatening and
menacing; and that while said Hunter was advancing towards said
Metcalf, and reaching in the direction of his pistol, said Metcalf fired,
hitting said Hunter. That no other person was in said saloon, or
within sight of the act, or,saw the shooting, than said Harness and
the affiant, during all of this time. That said Harness would swear he
was near Metcalf, a little to Metcalf s left and rear, but in full view
of both Hunter and Metcalf. That said Harness would swear that
he and this affiant both knew Hunter kept a pistol at the place under
the bar to which Hunter was advancing, and for which he was reach-
ing when he was shot. That said Harness would further swear that he
knew the character of Hunter for peace and quiet, and that he was
a bad character; very quarrelsome and dangerous. That said Har-
ness would further swear that Hunter began the difficulty with Met-
calf and was distant from him only 14 to 16 feet when he was shot
by Metcalf, and was advancing towards Metcalf and towards his
(Hunter's) pistol. That said Harness would further swear that he
had known Hunter for some considerable time prior to the shooting.
That said Hunter was unfriendly towards affiant, and that on several
occasions said Hunter had said to Harness that he (Httnter) would
kill Metcalf, and that prior to the shooting of said Hunter said Har-
ness had communicated to this affiant the threats Hunter had made to
kill affiant. That after the said shooting the said Harness left Mon-
tana with affiant and was present with affiant at Metlin's ranch a
short time after the killing, and affiant says he cannot prove the
foregoing by any other witness. That on the night after the killing
390 Volume 5.
6293. ADJOURNMENTS. 6293.
said Harness and this affiant left the state of Montana. That as soon
as affiant was charged and arraigned for the killing of Hunter, through
the aid of affiant's brothers and his attorneys, he began inquiries to
ascertain the whereabouts of said Harness, and on or about May
25th this affiant, through his brother Theodore Metcalf, learned for
the first time that said Alden Harness was in or near the town of
Horton, Brown county, state of Kansas, and that said -Harness's depo-
sition could be taken in said town and county; and relying upon
said statement and information, the facts were given to affiant's
counsel and steps were taken to procure the deposition of said Har-
ness before the clerk of the District Court of Brown county, state of
Kansas, and on the 28th day of May, i&95, notice to take said depo-
sition was served on the county attorney of Beaverhead county,
Montana, with interrogatories attached thereto. A copy of same is
hereto attached and made a part of this affidavit. That said notice
provided for the taking of said deposition on the 8th day of June,
i89o. That said deposition has not as yet arrived, and that affiant
cannot state positively whether said deposition has been taken, but
affiant has expected the same to arrive in time for this trial, but
whether it has been taken or will arrive in time for trial at this term
affiant cannot state. The last information had from the officer desig-
nated to take said deposition was that the witness Harness had not been
found by said officer, so that his deposition could not be taken, but
affiant says that if this cause is continued to the next term of this court
affiant verily believes that he can have the deposition of said Har-
ness, or have him present in person as a witness. That affiant also
secured a subpoena for said Harness to be placed in the hands of the
sheriff of Hearer head county for service if said Harness should return
or be found in this county, and the same has been returned "not
found." That this affidavit is not made for delay merely, but is made
in good faith, that affiant may have a fair trial and that justice may
be done.
[Paul Metcalf.
Subscribed and sworn to before me this day of , 18 .
Calvin Clark, Clerk of the District Court.]
Form No. 6293.
(Precedent in Beatrice Sewer Pipe Co. v. Erwin, 30 Neb. 87.)'
[State of Nebraska, }
County of Gage. \ ss '
Thomas Erwin, plaintiff, )
against > Affidavit for Continuance.
Beatrice Sewer Pipe Company, defendant. )
State of Nebraska, \ -,
County of Gage. ] SS-J
R. S. Bibb, being first duly sworn, on oath states that he is the
attorney for the defendant above named. 2 Affiant further states that
1. It was held reversible error to re- affidavit ought to be made by, or be sup-
fuse a continuance on this affidavit. ported by the affidavit of, the person
2. Who may Make Affidavit. The who has knowledge that the absent wit-
391 Volume 5.
6293.
CONTINUANCES AND
6293.
said defendant is a corporation organized under the laws of the
state of Nebraska, and doing business in the city of Beatrice, Gage
county, in said state, said business being the manufacturing of
tiling, sewer pipes, brick, etc.; that said defendant cannot safely
proceed to trial in the above entitled cause at the present term of
court on account of the absence of one Charles Huggins* a material
and important witness on the part of the said defendant, and that
said witness is now a resident of the state of California* the exact
place in California where said witness is residing being unknown to
affiant, although he has made diligent inquiries in the endeavor to
find out the post-office address of said Charles Huggins, as have also
the officers of said defendant; that said Charles Huggins formerly
resided in the city of Beatrice, Gage county, Nebraska, but left for
California before the commencement of this action. That the said
defendant expects to prove by the said Charles Huggins (who is the
pressman referred to in plaintiff's petition) that 2 on or about the 5th
ness will testify as stated. Williams v.
State, 6 Neb. 334. See also supra, note
3. P- 3^7. note i, p. 332.
1. The name and residence of the wit-
ness should be stated if known. See
Polin v. State, 14 Neb. 540; Comstock
v. State, 14 Neb. 205; supra, note I,
P- 334-
2. Expected Testimony and Materiality
Thereof. The facts to which the absent
witness will testify must be stated.
Farmers', etc.. Bank v. Berchard, 32
Neb. 785; Williams v. State, 6 Neb. 334.
See also Hair. v. State, 14 Neb. 503.
And it must appear or be shown by a
proper statement that such facts are
material and admissible. Burgo v.
State, 26 Neb. 639; Clark v. Mullen, 16
Neb. 481; Polin v. State, 14 Neb. 540;
Farmers', etc., Bank v. Berchard, 32
Neb. 785. See also supra, note 7, p. 335.
Form of Affidavit Held Insufficient.
In Burgo v. State, 26 Neb. 640, where
the defendant was prosecuted for as-
sault with intent to kill and his defense
was insanity, the following affidavit for
continuance, omitting the formal parts,
was held insufficient for the reason,
among others, that it did not allege that
the defendant at the time of committing
the act was unable to distinguish right
from wrong in regard to that particular
act. " The affiant. Peter Benjamin
Burgo, says that he is not ready for trial
at this term of the court, because of the
absence of the following witnesses
[naming them], which said witnesses
all live out of this state, and who sev-
erally reside at and in the states par-
ticularly and specially stated in the
affidavit of this affiant's attorney,
Charles Offutt, filed herein. Affiant
says that he can prove by each of the
said witnesses that this affiant has suf-
fered from hereditary insanity, to a
greater or less extent, all through his
life, and that he inherited the same
from his mother, who was so insane
for more than twenty years next before
her death, which occurred five years
ago, that she was unable to recognize
any person related to or previously
known to her; that for many years be-
fore the twenty years, at which she be-
came so insane as aforesaid, she was
subject to temporary fits of insanity,
during which she did not know what
she was doing, and did not understand
either the legal or moral effect of her
acts; that at said time his mother at-
tempted suicide. Affiant further says
that during all his life, or the greater
part thereof, he has lived outside the
state of Nebraska, and has only re-
cently come to live in the city of Omaha;
that he knows no one in the city of
Omaha who will testify to the aforesaid
facts, or any part thereof, and does not
know any one in the said city who
knows this affiant sufficiently well to
be able to state what the true facts are
in relation to the mental condition of
this affiant. He further says that he
believes that he can prove by each of
said witnesses that this affiant has been
for many years, and that he was at the
time of the assault complained of, un-
able to distinguish right from wrong, .
and did not know the legal or moral
effect or consequences of his acts. He
further says that this affidavit is not
made for delay, but in order that he
may obtain a just and fair trial."
392
Volume 5.
6293. ADJOURNMENTS. 6293.
day of September, i&87, he, the said Charles Huggins, was in the
employment of defendant, engaged in the running of the press men-
tioned in said petition; that when the said plaintiff commenced to
work upon said press, in company with said Charles Huggins, the
said plaintiff was fully and completely and properly instructed as to
the proper manner of performing the duties of his position, and
avoiding the dangers of his said occupation, and that plaintiff was
fully advised in the premises; that plaintiff was injured by his own
gross carelessness and fault, and not through the fault, carelessness
or neglect of him, the said Charles Huggins, the defendant, or any of
the other of its employees; that said plaintiff was injured by care-
lessly thrusting his hand into the cylinder mentioned when and
while the piston therein was rising, notwithstanding the fact that
said plaintiff had been instructed and warned to keep his hands out
of said cylinder when said piston was rising, and that immediately
upon the happening of the injury complained of the said plaintiff
stated in the presence of the said Charles Huggins " that it was his
(plaintiff's) own fault that he had been injured." That he knows of
no other person or persons by whom the above stated facts can be
proven, 1 [and that he believes the same to be true,] 2 and affiant fur-
ther states that when he was employed as attorney for the defendant,
he supposed that the present pressman at defendant's works was the
one who was working there when plaintiff was injured, and that
it was only a short time ago, and since the commencement of this
term of court, or immediately prior thereto, that he discovered
otherwise; that this affiant and the officers of said defendant having
used due diligence, by making every inquiry possible to find the
whereabouts of said Charles Huggins, and have asked all of those
who would be likely to know here what his post-office address is, but
could get no further information than that he was in California*
Affiant further says that he expects to procure the testimony of said
Charles Huggins at the next term of this court; 4 that it would be dan-
1. Ho Other Witness to Same Facts. Ingalls v. Noble, 14 Neb. 272, where
In Burgo v. State, 26 Neb. 641, the affi- the witness was in some place in
davit, which is quoted in full in the pre- Colorado unknown, and the allegation
ceding note, was held defective because of inquiries made to ascertain his
it did not allege that the same facts whereabouts was held too indefinite for
could not be proved by other witnesses, omitting to state when and of whom
See also Rowland v. Shephard, 27 Neb. the inquiries were made. For a similar
494; Johnson v. Mills, 31 Neb. 524, case see Comstock v. State, 14 Neb. 205.
where the affidavit held sufficient con- For other cases of insufficient diligence
tained this averment; and supra, note see McClelland v. Scroggin, 48 Neb.
2. P- 343- I 4 I ; Peavy v. Hovey, 16 Neb. 416;
2. Testimony Believed to be True. Rowland v. Shephard, 27 Neb. 494; and
The affidavit pronounced sufficient in for cases where the diligence alleged
Johnsons. Mills, 31 Neb. 524, contained was held sufficient see Hair v. State,
this averment, which is commonly in- 14 Neb. 503; Gandy v. State. 27 Neb.
serted, and has been held to be neces- 707; Newman v. State, 22 Neb. 355;
sary. See supra, note 2, p. 342. Johnsons. Mills, 31 Neb. 524, where the
3. Diligence to Obtain the Testimony. substance of the affidavit is given;
The statement of diligence " should be Miller v. State, 29 Neb. 437. See, gener-
of specific acts done or excuses for not ally, as to averments of diligence, supra
doing them, and given with such par- note 5. p. 339 ft seq.
ticularly that an indictment for perjury 4. Expectation of Procuring the Testi-
would lie in case of its being false." mony. It should be alleged that the
393 Volume 5.
6294. CONTINUANCES AND 6294.
gerous for defendant to proceed to trial in said action without the
testimony of said witness, and affiant further says that this applica-
tion for continuance is not made for delay, but that justice may be
done. 1
\R. S. Bibb.
Subscribed and sworn before me by R. S. Bibb this first day of
September, i8c?9.
(SEAL) Norton Porter, Notary Public within
and for the county of Gage, State of Nebraska]
Form No. 6294.-
State of South Dakota, \ ^
County of Lawrence. \
Henry Frawley, being duly sworn, upon his oath deposes and says:
I reside \\\ Deadwood, South Dakota; I am an attorney at law by occu-
pation, 3 and am actively engaged in the practice of my profession;
am the attorney for the defendants, 4 John Fitzgerald and David Fitz-
gerald, copartners as John Fitzgerald of Brother, defendants above
named, and have been their attorney since April, i890. Affiant fur-
ther says: T\\z.\. David Fitzgerald, by occupation a railroad contractor,
and who now resides at Lincoln, state of Nebraska? Charles McGlave,
by occupation bookkeeper and accountant, and who now resides at
Lincoln, state of Nebraska, John J. Cagney, by occupation bookkeeper,
and who now resides at Plattsmouth, state of Nebraska, I. S. P. Weeks,
by occupation a railroad civil engineer, and who now resides at Lin-
coln, state of Nebraska, and F, C. Tucker, by occupation a railroad
civil engineer, and who now resides at Lincoln, state of Nebraska, and
E. O. Bailey, by occupation a clerk, residence, Lincoln, state of
Nebraska, are material witnesses for the defendants, John Fitzgerald
or* Brother aforesaid, without whose testimony they cannot safely
proceed with the trial of this action.
party expects to procure the absent holding that the refusal of a continu-
testimony at the time to which he seeks ance was reversible error,
to continue the case. See Barton v. 3. " Name, residence and occupation of
McKay, 36 Neb. 632; Johnson v. Mills, the affiant and of the witness " must be
31 Neb. 524, and supra, note 8, p. 345. stated, "unless the name of the witness
And if the witness is out of the state is not known, in which case the affiant
or his whereabouts unknown, facts shall state such facts, if possible, as
should be alleged showing that there is will establish the identity and existence
reasonable ground to believe that his of the witness." Rule No. XXIX, subd.
testimony can be so procured. Row- i, of the circuit court (6th Jud. Cir.).
land v. Shephard, 27 Neb. 494; McClel- See further, as to statement of name
land v. Scroggin, 43 Neb. 141; Polin v. and residence of witness, supra, note
State, 14 Neb. 540. i, p. 334.
1. Application Not Hade for Delay 4. Who may Make Affidavit. " Mo-
Merely. See supra, note 7, p. 347. tions for a continuance on account of
2. South Dakota. Rule No. XXIX of the absence of witnesses, in all cases,
the circuit court (6th Jud. Cir.). civil or criminal, must be based upon
This form was kindly furnished by the affidavit of the party, his agent
Hon. Howard G. Fuller, judge of the or attorney, except in criminal cases
supreme court of South Dakota, and, where the defendant is confined in jail,
as supplemented by the notes, is a copy when the affidavit may be made by any
of the affidavit filed in the circuit court person knowing the facts." Rule No.
in Adams v. Grand Island, etc., R. Co., XXIX of the circuit court (6th Jud.
(S. Dak. 1897) 72 N. W. Rep. 577, Cir.).
394 Volume 5.
6294.
AD JO URNMENTS.
6294.
That the material facts which it is expected to be proven by said
witnesses, and each of them, is as follows {statement of facts expected
to be prwed). 1 Affiant further says, that he believes the aforesaid
1. Facts Expected to be Proved. The
affidavit must state "the material facts
which it is expected to prove by said
witness." Rule No. XXIX, subd. 2,
of the circuit court (6th Jud. Cir.).
See also supra, note 7. p. 335.
The affidavit continued as follows:
"David Fitzgerald had the sole charge
of the construction of said railroad
during the time the plaintiff alleges he
worked upon section 101 thereof and
had personal charge of the construction
of the line of railroad from Edgemont,
Fall River county, to Pennington,
Lawrence county, South Dakota, from
on or about the isth day of April, 1890,
until the completion thereof, and that
said David Fitzgerald knows and can
prove that the firm of John Fitzgerald
& Brother is not now and was not on
the 3ist day of November, 1890, in-
debted to the said A. H. Fitch, in any
sum whatever under the said contract
under which the said plaintiff alleges
he was employed to and did perform
labor and that the said A. H. Fitch total
value of labor done under his said
alleged contract was $37, 047.10, and no
more, and that the total amount paid
by said John Fitzgerald & Brother to
the said A. H. Fitch and accepted and
received by said A. H. Fitch upon his
said contract was the sum of $41,085,06,
and that there is now and was on the
ist day of December, 1890, due and
owing from the said A. H. Fitch to the
said John Fitzgerald & Brother the
sum of $4,037.96.
That Charles McGlave is now, and
was during all the time during which
the plaintiff alleges he was at work on
section 101, the general bookkeeper of
John Fitzgerald & Brother, and as such
had general charge of all the books of
original entry, receipts, vouchers, dates
of payment, and payments made by
John Fitzgerald & Brother aforesaid to
the said A. H. .Fitch mentioned in
plaintiffs complaint, and knows the
fact and has the written and document-
ary evidence in his possession to prove
and sustain that the total value of the
work and labor performed by A. H.
Fitch under his said contract was $37,-
047.10, and that the said John Fitz-
gerald & Brother paid to said Fitch and
the said Fitch accepted upon his said
contract from them the sum of $41,-
085,06, and that there is not now and
was not on the 3151 day of November,
1890, any sum due from said John
Fitzgerald & Brother to the said A. H.
Fitch upon his said alleged contract,
and that in fact there was due and
owing and is now due and owing and
since the first day of December, 1890,
has been due and owing from A. H.
Fitch to John Fitzgerald & Brother the
sum of $4,037.96.
That John J. Cagney was the local
bookkeeper upon said line of railroad
and assistant paymaster of John Fitz-
gerald & Brother during the season of
1890, and paid to said A. H. Fitch, upon
his said contract, large sums of money
and made the entries in the original
books thereof.
That I. S. P. Weeks was the chief
engineer, who had general charge and
supervision of the construction of the
entire line of said railroad hereinbefore
mentioned, and that F. C. Tucker was
the division engineer under said I. S.
P. Weeks during the entire time of the
construction of said railroad; that the
contract under which the said A. H.
Fitch is alleged by the plaintiffs to have
constructed the railroad mentioned in
the plaintiff's petition provides, among
other things, as follows:
' It is also agreed that in case the
engineer shall be of the opinion that
any portion of the work is not pro-
gressing at such rate as to insure the
completion of the work according to
the contract, then, if he so elects,
he is herewith invested with full power
and authority, any supposed privi-
lege of contractor or subcontractor
to the contrary notwithstanding, to
place such force of men and teams
on said work as will in his judgment
be desirable to the quick completion of
said work, the expense of which so in-
curred shall be deducted from the
amount to be paid to the contractor, or
subcontractor.' And said contract under
which said work is alleged to have been
performed by A. H. Fitch contained
among other provisions the following:
' The quantities and amounts of the
several kinds of work performed under
this contract shall be determined by the
measurement and calculation of the
engineer or his assistants acting under
his direction, and the said engineer
395
Volume 5.
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CONTINUANCES AND
6294.
facts to be true, 1 and that he knows of no other witnesses by whom
such facts can be fully proven. 2 Affiant further says that he believes
all the aforesaid facts to be true, and that if said witnesses were
present, they will personally testify to the same. {Diligence to obtain
the witness or his testimony)* That affiant believes that if this case be
shall have full power to reject or con-
demn any and all work which in his
opinion does not conform to the spirit
of this agreement. And it is expressly
agreed by the parties of this contract
that the measurement and determina-
tion of the quantities by said engineer or
his assistants under his directions shall
be final and conclusive upon both parties
hereto, and that his decision, directions
and determinations, in the execution of
the work herein shall be binding and
conclusive upon the parties.' That
said engineers, Weeks and Tucker, will
prove that the said A. H. Fitch did not
complete his work in accordance with
said contract, and that the said engi-
neers, Weeks and Tucker, did elect
that the said A. H. Fitch, in their opin-
ion, was not progressing in such time as
would insure the completion of said
work according to the contract, and
said engineers did elect and place
upon said work men and teams, and
E. O. Bailey kept time of the num-
ber of days and number of teams em-
ployed upon said work so contracted to
be done by said A. H. Fitch, and that
the total value of the said work and
labor of the men and teams elected to
be placed upon said work of said A. H.
Fitch amounted to $15,941.45, and that
the names of the men and the value of
the labor performed upon the work un-
dertaken to be completed by said A. H.
Fitch is hereto attached, marked Ex-
hibit A, from pages' 12 to 25 inclusive;
that the said Tucker and Weeks did de-
termine the amount due under said con-
tract of said A. H. Fitch and the value
thereof in his final estimate, and that
the amount and value thereof was paid
and accepted by said A. H. Fitch, as
aforesaid.
Affiant further says, that pages 2 to
n, inclusive, contain payments and
advances made to said A. H. Fitch on
his said contract, which is hereto at-
tached and marked Exhibit B."
1. Facts Believed to be True. " That
affiant believes them to be true " must
be stated. Rule No. XXIX, subd. 2,
of the circuit court (6th Jud. Cir.). See
also supra, note 2, p. 342.
2. No Other Witness to Same Facts.
The affidavit must state that the affiant
" knows of no other witness by whom
such facts can be fully proved." Rule
No. XXIX, subd. 2, of the circuit court
(6th Jud. Cir.). See also supra, note 2,
P- 343-
3. Diligence to Obtain the Witness or
his Testimony. The affidavit must state
"efforts constituting due diligence to
obtain such witness or his testimony."
Rule No. XXIX, subd. 3, of the circuit
court (6th Jud. Cir.). See also supra,
note 5, p. 339 et seq.
The affidavit continued as follows:
"Affiant further says, that on the 22d
day of January, 1894, this cause was set
for trial by said court upon the 8th
day of February, 1894; that upon said
22d day of January, 1894, affiant ad-
vised his clients by letter directed to
their home in Lincoln, Neb., and re-
ceived in reply a letter hereto attached
and marked Exhibit C, and made a
part of this affidavit, and that thereafter
to wit, on the 3ist day of January, 1894,
affiant received another letter from his
said client in reference to the witness
O. E. Bailey, which is hereto attached
and marked Exhibit D, and hereby
made a part of this affidavit; and that
thereafter, to wit, on the 4th day of Feb-
ruary, 1894, affiant received another
letter in reference to witnesses in this
case from his said clients, which is
hereto attached and made a part of this
affidavit and marked Exhibit , and
again on the 7th day of February, 1894,
affiant received a telegram in reference
to the witnesses in this case, from his
said clients, which is hereto attached
and marked Exhibit F, and hereby
made a part of this affidavit. Affiant
further says, that David Fitzgerald,
Charles McGlave, I. S. P. Weeks and
F. C. Tucker, are unavoidably detained
as witnesses in the United States Cir-
cuit Court for the State of Nebraska,
now in session in the city of Omaha,
for that on the 5th day of February,
1894, the case of James Halley, who is
the assignee of Chamberlain & Skinner, '
against John Fitzgerald & Brother for
the sum of over $58,000 was commenced
and that the said case is now in progress
of trial; that said case arises and grows
out of the construction of the line of
railroad constructed by John Fitzgerald
396
Volume 5.
6294.
AD JO URNMENTS.
6294.
postponed until the determination of the case in the United States
Court at Lincoln, Nebraska, the said witnesses can be obtained in
this court on behalf of the defendant. 1 (Grounds for belief ".) 2 Where-
fore affiant asks that this case be postponed until the trial of the case
now pending in the United States Court is concluded, which will not
exceed, in affiant's opinion and belief, ten days, and that affiant's
witnesses will be present at said time, and that the case now being
tried by Mr. Van Cise will be concluded by that time, and he and all
the witnesses for the defendants will be ready to proceed with the
trial of this case; that this application is not made for the purpose of
& Brother between Edgemont and
Deadwood during 1890; that said case
was originally brought in the Circuit
Court of the Seventh Judicial Circuit
of the State of South Dakota, subse-
quently removed to the United States
Circuit Court of the District of South
Dakota, and thereafter, and after all
the testimony on part of the plaintiff
was taken, dismissed by the plaintiff;
that affiant was engaged as counsel for
John Fitzgerald & Brother, therein and
during the taking of plaintiff's testi-
mony in the case, and that the wit-
nesses, F. C. Tucker, I. S. P. Weeks,
David Fitzgerald were present thereat;
that affiant knows that the said defend-
ants herein and for whom this affidavit
is made do not desire a postponement
of this case and that the witnesses on
their behalf would now be present if
they had not unavoidably been de-
tained; that E. O. Bailey's mother died
since this case was set for trial, as affi-
ant is informed and believes; that the
case now pending in the United States
Court was set for trial, as affiant was
informed, by N. K. Griggs, on the 4th
day of February, 1894, unexpectedly,
and that it was a great surprise to the
defendants in said case; that the reason
said Fitzgerald, McGlave, Cagney and
Bailey's testimony was not taken was
because they had agreed to be here per-
sonally and had in several cases here-
tofore tried, testified in Deadwood in
like cases; that if F. C. Tucker and I.
S. P. Weeks's testimony was not taken
for the reason that since said case was
set for trial they each said they would
be here personally and have personally
attended the trial of lien cases involv-
ing the same propositions in this city."
1. Expectation of Obtaining the Testi-
mony. See supra, note 8, p. 345.
2. Grounds for Belief. The affidavit
must state "facts showing reasonable
grounds for the belief that the attend-
ance of the witness or his testimony
can be procured at the next term or at
the time to which the continuance is
asked." Rule No. XXIX, subd. 4, of
the circuit court (6th Jud. Cir.). See
also supra, note 3, p. 347.
The affidavit continued as follows:
" Affiant further says, that McGlave,
Fitzgerald, Weeks and Tucker are now
each personally attending the United
States court at Omaha as witnesses in
the aforesaid case, and affiant from his
knowledge of said case believes the
same will occupy in the trial thereof
about two weeks, and that inasmuch
as all said witnesses have agreed to at-
tend the trial in this court and affiant
knows that all the books, final estimates
and vouchers used and growing out of
the construction of said railroad are now
in the custody of the said McGlave and
Cagney, Weeks and Tucker for the
purpose of being used as evidence in
the case now being tried in said United
States court, and for that reason are
unable to be used at this time in the
trial of this case. Affiant further says:
that the said Bailey has not yet re-
turned from his trip east occasioned by
the death of his mother, who died since
this case was set for trial and is un-
avoidably detained thereat, and unable
to be here at this time, but from
affiant's information and knowledge,
inasmuch as he resides in Lincoln,
affiant believes he can be obtained and
will be here personally to testify in this
case as soon as the case now pending in
Omaha is determined. Affiant further
says, that Edwin Van Cise, attor-
ney for the defendant railroad com-
panies, is now unavoidably detained at
Hot Springs, South Dakota, in the trial
of an important case thereat, and that
said case and the trial thereof was set
since this case was called and regularly
set for trial. That this action is an
action to foreclose a lien upon the rail-
road claimed or owned by the clients of
the said Van Cise."
397
Volume 5.
6295.
CONTINUANCES AND
6295.
delay, 1 but that justice may be done in the premises. 2
Henry Frawley?
Subscribed and sworn to before me this eighth day of February, iS94.
(SEAL) /. P. Laffey, Notary Public.
TEXAS CIVIL CASE FIRST APPLICATION.
Form No. 6295.*
1. Application Not Made for Delay.
See supra, note 7, p. 347.
2. Excuse for Delay in Making Applica-
tion In Civil Cases. "All motions for
a continuance must be filed on or be-
fore the first day of the term and called
up for hearing upon the preliminary
call of the calendar, unless the cause
of such continuance shall have arisen
or come to the knowledge of the party
subsequent thereto, in which case the
motion shall be made as soon as prac-
ticable, and the affidavit must state the
facts showing reasonable diligence and
constituting an excuse for delay."
Rule No. XXVII of the circuit court
(6th Jud. Cir.).
" In criminal actions the motion for a
continuance must be made as soon as
practicable after issue of fact joined,
and the affidavit must show that it is so
made." Rule No. XXVIII of the cir-
cuit court (6th Jud. Cir.).
For a form of averment under a
statutory provision similar to the fore-
going rules, see the concluding part of
Form No. 6289.
3. Defendant's Affidavit. There was
also filed a separate affidavit by the
defendant, as follows:
" State of Nebraska, )
County of Douglas. J ss '
Affidavit of David Fitzgerald for con-
tinuance.
David Fitzgerald, being duly sworn
on oath, deposes and says he is one of
the defendants in the above entitled
action; that one Edward O. Bailey is a
material witness for the defendant in
the trial of the above entitled action ;
that the defendants have not taken the
deposition of the said Bailey for the
reason that the aforesaid Bailey had
agreed with defendants, and particu-
larly with this affiant, to go to Dead-
wood, South Dakota, to attend court
and testify in this case whenever the
said case would be reached; that de-
fendant relied upon his promise, and
that Bailey would go to Deadwood and
testify in the case were it not for the
reason that said Bailey's mother died
at Dayton, Ohio, last week, and the
said Bailey was obliged to go on to
Dayton, Ohio, to attend the funeral
and look after his mother's estate; that
the said Bailey was not aware until
just before he left here that he would
have to go on, and these defendants
did not know until just before he
started that he was going away; and
that when he left here he promised
these defendants to return just as soon
as possible; and that he would in all
probability be back within a week, but
that these defendants, and particularly
this affiant, have written and tele-
graphed said Bailey asking him to re-
turn at once, and since he went away
the above entitled cause has been set
for trial, but have received no reply
.from the said Bailey; that the said
Bailey is the only witness who can
testify as to the amount of time that
plaintiff worked for Mr. Fitch; and
that the testimony of the witness
Bailey with reference to this point is
vital and material to this case; that
this affiant, one of the defendants, who
is a material witness for the defendants
in the above entitled action, will be un-
able to be present at the time the case
is set for trial, for the reason that he is
a party to a case now being tried in the
United States court for the district of
Nebraska; and that said case will last
for some considerable time, just how
long this affiant is unable to say, but
probably for two or three weeks; and
that defendants cannot go to trial in
Deadwood without the testimony of this
affiant; that this affidavit for a continu-
ance is not made for the purpose of
delay, but that the defendants may be
able to present testimony vital to their
interests, and that their rights may be
protected.
David Fitzgerald.
Subscribed in my presence and sworn
to before me this sixth day of February,
1894. W. L. Learned,
(SEAL) Notary Public."
4. The statutory provision regulating
first applications for continuance in civil
cases in the district andcounty courts is
Tex. Rev. Stat. (1895), art. 1277.
398
Volume 5.
6295.
AD JO URN MEN TS.
6295.
(Precedent in Doll v. Mundine, 84 Tex. 317.)
Term, A. D. iS86.
[The State of Texas, \ ~ . . . . n
Bounty of Lee. \ Dtstrict Court '
W. W. Mundine, plaintiff,
against
Eliza Doll et al., defendants.
The State of Texas, \ -,
County of Lee. f
Now come the defendants in the above cause by their attorney,
Other Approved Forms. In Bailey v.
State. 26 Tex. App. 341, a proceeding
for forfeiture of a bail bond, the follow-
ing affidavit, omitting the caption, sig-
nature and jurat, was held sufficient:
" Now come the defendants, S. M.
Millhollan in person, and_/. D. Lindley
by attorney, and say they cannot safely
go to trial in this case at this term of
the court, for the want of the testimony
of the defendant, J. D. Lindley, Eli
Lindley and Batt Millhollan, all of
whom reside in Hopkins county, Texas,
and each of whom is and are material
witnesses for the defendants in this
case; and defendants say they have
used due diligence to procure the tes-
timony of each of said witnesses, Eli
Lindley and Millhollan; that both of
said witnesses have been in attend-
ance upon this court during the pres-
ent term thereof, and the witness
Batt Millhollan was in attendance upon
this court on yesterday or the day be-
fore. Defendants say that, since the
last term of this court and before the
present term of this court, and a few
days after the service of the writ of
scire facias upon these defendants,
they caused to be issued a subpcena by
the clerk of this court for said wit-
nesses, Eli Lindley and Batt Millhollan,
in due form of law; that said subpoenas
were served on each of said witnesses
by the sheriff and deputy sheriff of this
county before the present term of this
court. They say that said subpcena
has not been returned into court, or, if
so, has not been found by the defend-
ants at all. The defendant S. M.
Millhollan says that he saw defend-
ant J. D. Lindley on last night, and
that said J. D. Lindley was sick in
bed, and is not able to be in attendance
upon this court today; that he, J. D.
Lindley, lives about ten miles from the
court-house of this county, and is a
material witness in this case for this
defendant, S. M. Millhollan. Premises
considered, this defendant asks for
himself, and for and in behalf of the
defendant^/. D. Lindley, that this cause
be continued until the next term of
this court. This defendant herewith
annexes and makes a part of this show-
ing the certificate of the physician,
Doctor B. Worcham, showing the sick-
ness of J. D. Lindley."
The following is the body of an affi-
davit which was held sufficient in
Cleveland v. Cole, 65 Tex. 403:
" Now come the defendants in the
above cause, and say that they cannot
safely go to trial at this term of the
court, for want of the testimony of A.
Tidwell, who resides in San Jacinto
county, Texas; that the testimony of
that witness is material for their de-
fense; that they have used due dili-
gence to procure the same in that
they caused a subpcena to be issued
by the clerk of the district court cf
San Jacinto county, on October j,
iBS$, and executed by serving, by
the proper officer, to wit, the sheriff
of San Jacinto county, upon that wit-
ness, on October 31, \^>8^, which sub-
poena, with the officer's return thereon,
is hereto attached, marked Exhibit A
and made part hereof; that they expect
to procure the testimony of the witness
by the next term of the court; that
there are no other witnesses known to
defendants by whom the same facts
can now be proved on this trial."
In Texas Transp. Co. v. Hyatt, 54
Tex. 214, the affidavit, omitting formal
parts, was as follows:
" Now comes the defendant, and says
it cannot go safely to trial at this term
of the court, because of the absence of
testimony material to its cause, to wit,
the absence of the witnesses J. W.
Goodwin and S. W. Allen. Affiant
states that it has used due diligence to
procure the testimony of these wit-
nesses, in that it caused a subpcena to
be issued for said witnesses out of the
19 Volume 5.
6295.
CONTINUANCES AND
6295.
Charles J. Stubbs, and show to the court, that they cannot go safely
to trial at the present term of this honorable court for the want of
testimony material 1 to their defense, viz., that of JohnH. Mundine,
I. Douglass, ft. M. Dickson, Dr. H. Bain, Thomas Douglass, Mr. Hard-
castle, Dr. W. S. Johnson, A. H. Gladdish, John Caplen, R. H. Flanni-
gan, Mrs. W. Rowland, Mrs. Wilson, George Guthrie, Mrs. J. W.
Schive, and Robert V. Guthrie, all of whom reside in Lee County,
except A. H. Gladdish and John Caplen; and also D. C. Cunningham,
a resident of Galveston County, Texas. That defendants have used
due diligence 2 to procure the testimony of said witnesses (except
Cunningham'), by causing a subpoena to be issued out of this court
on the Jfth day of November, i889, summoning all said persons except
the said Cunningham, which subpoena went into the hands of the
sheriff of Lee County on the 4th day of November, iS89, and was
executed as to John Mundine, I. Douglass, R. M. Dickson, Dr. H.
Bain, Thomas H. Douglass, Mr. Hardcastle, R. H. Flannigan, Mrs.
W. Rowland, Mrs. Wilson, George Guthrie, Mrs. J. W. Schive, Robert
district court of Harris county, on the
nth day of October, 1877, and the same
was placed in the hands of the sheriff
of Harris county, Texas, by whom it
is returned on the 2qth day of October,
1877, ' served on all said witnesses ex-
cept Charles Pearce,' to which subpoena
now on file among the papers of this
cause reference is had for greater cer-
tainty. That said witnesses reside in
Harris county, Texas, and that this de-
fendant expects to procure their testi-
mony by the next term of this court;
that they are not absent by the pro-
curement or consent of this defendant,
and this application is not made for
delay, but that justice may be done,
and that their testimony is material to
the defense of this cause.
E. W. Cave, Agent.
Sworn to and subscribed before me,
this I2th day of November, 1877.
/. Burke, Jr., Clerk D. C. H. Co."
In reversing the judgment for re-
fusal to grant a continuance on the fore-
going affidavit the court said: "The
further question is presented whether
defendant, seeking a first continuance,
failed to show diligence in that it failed
to show a tender of their fees to the
absent witnesses. The court in sign-
ing the bill of exceptions refers to the
case of Bryce v. Jones, 38 Tex. 205. In
that case it was made to appear by
counter affidavits that the case had been
regularly reached on the preceding
day, when the absence of the wit-
nesses became known, and at the re-
quest of plaintiffs the case was put off
until the next day. The court held
that the plaintiffs should have re-
sorted to an attachment, and not hav-
ing placed themselves in a condition to
do so by tendering the witnesses their
fees, they were wanting in diligence.
The facts of that case were peculiar,
and the decision does not necessarily
involve the rule that in ordinary cases
a first application for a continuance
must show that the witness fees were
tendered. It is not believed that such
a rule has heretofore prevailed in prac-
tice, and in our opinion the court
erred in enforcing it. The application
for a continuance was sufficient and it
was error to refuse it."
Forma of Affidavits Held Insufficient.
See Missouri Pac. R. Co. v. Aiken, 71
Tex. 373; Bryce v. Jones, 38 Tex. 205;
Texas, etc., R. Co. v. Hall, 83 Tex.
675; Falls Land, etc., Co. v. Chisholm,
71 Tex. 523.
1. Materiality of Testimony. The
affidavit must state that the absent tes-
timony is "material." Tex. Rev. Stat.
(1895), 1277. For want of that aver-
ment in McGehee v. Minter, (Tex. Civ.
App. 1894) 25 S. W. Rep. 718, it was
held that the motion was properly over-
ruled. See also supra, note on p. 338.
2. Due Diligence. The affidavit must
state that " due diligence has been used
to procure" the absent testimony.
Tex. Rev. Stat. (1895), 1277. See
also supra, note 5, p. 339.
" It is not sufficient to state the dili-
gence without also stating that it was
due or sufficient diligence." St. Louis,
etc., R. Co. v. Woolum, 84 Tex. 570,
holding that it is not obligatory on
the court to grant a continuance if the
averment is omitted.
400
Volume 5.
6296.
AD JO URNMENTS.
6296.
V. Guthrie, and Dr. IV. Johnson, duly served, and not executed as to
A. H. Gladdish and Caplen, all of which will appear from the said
process, which is hereby referred to, together with the returns thereon,
as a part hereof. 1
That said Cunningham is also an important and material witness 2
and a party to this suit, whose deposition has not been taken, because
he expected and intended to be present at the trial of the cause; but
since the service of the citation herein he has been taken sick, and
is still sick and unable either to travel or submit to having his depo-
sition taken; and he is affected with partial paralysis, and was so
taken ill about November 2, i889. * * *
Wherefore defendants ask the court that the cause is continued to
the next term of this honorable court.
Charles J. Stubbs,
Attorney in fact for Elizabeth Doll et a/. 3
Sworn to and subscribed to before me this the 6th day of November^
iS86.
(SEAL) J. J. Dardin, District Clerk.
TEXAS CIVIL CASE SECOND OR SUBSEQUENT APPLICATION. 4
Form No. 6296.*
( Title of court and cause, and venue as in form No. 6295.)
1. Statement of Diligence. The affi-
davit must state the diligence used to
procure the testimony. Tex. Rev. Stat.
(1895), 1277; Missouri Pac. R. Co. v.
Aiken, 71 Tex. 373, giving the full form
of an affidavit pronounced insufficient
and holding that facts must be stated,
and not mere legal conclusions. See
also supra, note 5, p. 339.
In Tittle v. Vanleer, (Tex. Civ. App.
1894) 27 S. W. Rep. 736, the affidavit
alleged that a subpoena had been
issued and placed in the hands of the
sheriff on the day preceding the appli-
cation, but did not show when and by
whom the subpoena had been served,
stating only " which subpoena has been
served." It was held that the affidavit
should have stated the date of the serv-
ice in order that it might appear that
the witness had been subpoenaed in time
to enable him to be in attendance upon
the trial. To the same effect see
Brown v. Abilene Nat. Bank, 70 Tex.
750, and the same principle was ap-
plied in Gulf, etc., R. Co. v. Wheat, 68
Tex. 133.
In the following cases the statement
of diligence was held not to disclose
sufficient diligence: East Dallas v.
Barksdale, 83 Tex. 117; Texas, etc., R.
Co. v. Hall, 83 Tex. 675; Falls Land,
etc., Co. v. Chisholm, 71 Tex. 523;
Missouri Pac. R. Co. v. Shuford, 72
Tex. 165; Campbell v. McCoy, 3 Tex.
Civ. App. 298; International, etc., R.
Co. v. Ragsdale, 67 Tex. 24; Texas,
etc., R. Co. v. Hardin, 62 Tex. 367. In
Blum v. Bassett, 67 Tex. 194, the affi-
davit was held sufficient.
2. See supra, note i, p. 400.
3. Affidavit by Attorney in Fact. Tex.
Rev. Stat. (1895), art. 5, provides that
" whenever at the commencement or
during the progress of any civil suit or
judicial proceeding it may be necessary
or proper for any party thereto to make
an affidavit, such affidavit may be made
by either the party or his agent or
attorney." " The clear meaning of this
provision of the law," said the court in
this case, " is to confer upon the at-
torney the same right to make an affi-
davit during the progress of a cause
that the law confers upon his client."
4. The code provisions governing sec-
ond or subsequent applications for
continuance are to be found in Tex.
Rev. Stat. (1895), art. 1278.
5. This form slightly modifies the
precedent in Prewitt v. Everett, loTex.
283, to make it conform more accu-
rately to the code provisions now in
force.
In Dillingham v. Ellis, 86 Tex. 447,
the affidavit was held to be in strict
compliance with the statute and the re-
fusal of a continuance reversible error.
5 E. of F. P. 26.
401
Volume 5.
6297. CONTINUANCES AND 6297.
Now comes the defendant and says that he cannot safely go to trial
without the evidence of Joel Hughes^ 1 which is material to his defense; 2
that he expects to prove by said witness that plaintiff only charged
defendant one hundred dollars for services in favor of defendant
against J. P. Hughes; defendant also expects to prove by said witness
the indebtedness of the plaintiff to the defendant as charged in his
answer.
The defendant has used due diligence 3 to procure the testimony of
said witness in that he (Here state the diligence used)? Defendant
knows not the cause of the absence of the said witness, unless it is
the sickness of his family. Defendant knows the wife of said witness
was sick and unable to sit up last Tuesday morning. 3 Defendant says
that he expects to procure the testimony of the said witness at the
next term of this court, 4 that the same testimony cannot be obtained
from any other source, 5 that the said Hughes resides in Cass county,
Texas, 6 and that this continuance is not sought for delay only, but
that justice may be done. 7 (Signature and jurat as in Form No. 6295.)
TEXAS CRIMINAL CASE FIRST APPLICATION. 8
Form No. 6297.
(Precedent in Dinkens v. State, 42 Tex. 250,)'
The State of Texas } Now comes the accused in the above styled
v. > cause, and moves the court for a continuance,
Louis Dinkens. ) because he says that he cannot go safely to
1. The name of the witness must be 4. Expectation of Procuring Testimony,
stated. Tex. Rev. Stat. (1895), art. 1278. See supra, note 8. p. 345.
See also supra, note i, p. 334. 5. Same Testimony Not Elsewhere Ob-
2. Statement of Expected Testimony and tainable. The affidavit must state that
Materiality Thereof. The affidavit must the absent testimony "cannot be ob-
state that the absent testimony "is tained from any other source." Tex.
material, showing the materiality Rev. Stat. (1895), art. 1278. See also
thereof " and what the applicant expects supra, note 2, p. 343.
to prove by the absent witness. Tex. For want of that averment an affi-
Rev. Stat. (1895), art. 1278. See also davit for a third continuance was held
supra, note 7, p. 335 et seq. insufficient in Rowland v. Wright, 64
In Owen v. Cibolo Creek Mill, etc., Tex. 261.
Co., (Tex. Civ. App. 1897)43 S. W. Rep. 6. The residence of the witness must be
297, it was not sufficiently shown that stated. Tex. Rev. Stat. (1895), art.
the testimony was material. And in 1278. See also supra, note I, p. 334.
Merchant v. Bowyer, 3 Tex. Civ. App. 7. Application Not Made for Delay Only.
367, the affidavit was held insufficient The affidavit must "state that the
because it did not set forth the evidence continuance is not sought for delay
of the witness. only, but that justice may be done."
3. Diligence to Procure the Testimony. Tex. Rev. Stat. (1895), art. 1278. See
The affidavit must state that the ap- also supra, note 7, p. 347.
plicant " has used due diligence to pro- 8. The Statutory Provisions. First ap-
cure [the absent] testimony, stating plications for a continuance on behalf
such diligence, and the cause of failure of the defendant in a criminal case are
if known." Excepting the last clause governed by Tex. Code Crim. Proc.
of the foregoing quotation, it is identi- (1895), art. 597, cited in the following
cal with the showing required fora first notes.
continuance as exemplified in Form 9. The defendant had been committed
No. 6295, supra. In Little v. State, 75 by a magistrate on a charge of horse-
Tex. 616, the diligence shown was stealing. He was subsequently in-
held insufficient. dieted, and it was held reversible error
402 Volume 5.
6297.
AD JO URNMENTS.
6297.
trial at this term of the court for the want of the evidence of Fayett
Gibbs, who resides in Walker county, in the state of Texas, 1 and who
is a material witness for him; that on the same day that the indict-
ment was filed 2 in said cause, to wit, the 13th of October, iS74, he
made, by his counsel, application for an attachment to Walker
county for said witness, and placed the same in the hands of M. M.
Cone, Deputy Sheriff of Grimes county, with request to serve the
same immediately; that said attachment has not been returned to
this court; 3 that said defendant expects to prove by said witness,
when the case was called for trial to
refuse an application for continuance
on this affidavit.
Forms Held Insufficient. See Shanks
v. State, 25 Tex. Supp. 328; Murry v.
State, I Tex. App. 175.
Another precedent of the first applica-
tion by defendant may be found in
Beach v. State. 32 Tex. Crim. Rep. 241,
which, omitting the formal parts, was
as follows: " Now at this term of the
court comes the defendant, Lute Beach,
in the above styled and numbered
cause, and says he cannot go safely to
trial at this term of the court, for the
want of the testimony of John Thomp-
son. That said witness resides in Erath
county, Texas, in the neighborhood of
the town of Duffan, in said county.
That the defendant expects to prove by
said witness, John Thompson, that he,
Thompson, was with the defendant on
the night of the j/st day of October,
A. D. l8<fi?, in the town of Stephenville,
the time and place where the defendant
is charged with having carried a pistol
in the indictment in this case, and that
he will prove by said witness that he,
the witness, was with defendant just a
few minutes before the defendant was
supposed to have been seen with the
pistol; and that said witness will testify
that the defendant had no pistol, but
had a bottle of whiskey in his pocket,
and that the witness saw the defendant
drop the bottle of whiskey out of his
pocket, and that afterward the witness
picked said bottle up, and knows and
will testify that it was not a pistol, but
was a bottle of whiskey. That these
facts have come to the knowledge of
the defendant since the commencing of
this court. The diligence used to pro-
cure the attendance of said witness is
this: That on thejM day of December,
A. D. i8SS, the defendant caused to be
issued, out of the county court of Erath
county, a subpoena for the said Thomp-
son, and placed said subpoena in the
hands of N. J. Shand, sheriff of Erath
county, on said last named date; that
said subpoena is hereto attached and
made apart hereof; that said subpoena
has not been served by reason of the
inclemency of the weather That the
witness is not absent by the procure-
ment or consent of the defendant.
That the application is not made for
delay. That there is no reasonable ex-
pectation that the attendance of said
witness can be procured during the
present term of the court, by a post-
ponement of the trial to some future
day of said term."
Another approved form in Austin -'.
State, 42 Tex. 346, would not now be
available without amendment, as it
fails to conform to the requirements of
the statutory provisions now in force.
1. Residence of Witness. Tex. Code
Crim. Proc. (1895), art. 597, subd. i, re-
quires that the affidavit shall state "the
name of the witness and his residence
if known, or that his residence is not
known." See also supta, note I, p. 334.
2. The defendant had employed coun-
sel before indictment found, and the
trial court erroneously held that he
should have prepared for trial before
the presentation of an indictment.
3. Diligence to Procure the Testimony.
" The affidavit must state the diligence
which has been used to procure his at-
tendance, and it shall not be considered
sufficient diligence to have caused to be
issued or to have applied for a sub-
poena, in cases where the law authorizes
the issuance of an attachment." Tex.
Code Crim. Proc. (1895), art. 597,
subd. 2. In this case the trial was
in Grimes county and the witness re-
sided in Walker county. In such cases,
viz., where the witness resides in
another county, an attachment may be
issued for him without previously serv-
ing him with a subpoena. Tex. Code
Crim. Proc. (1895), art. 525. Where the
witness resides in the county in which
the trial is had, there must be disobedi-
ence of a subpoena before an attach-
403
Volume 5.
6297. CONTINUANCES AND 6297.
that one Phil. Blue had the horse charged to have been stolen by the
accused, in the possession of the said Blue, and that Blue invited the
accused to ride behind him, and told the accused that the horse
belonged to him, and that the said Phil. Blue placed said horse in the
possession of the accused, and directed the accused to ride the horse
up to the house of J. T. Wilkinson, who resides in Walker county, and
ask if they might stay all night, which he did; that said witness had
been with the accused all the day preceding this occurrence, and the
part of the night that had elapsed before he met the said Blue, and
that up to that time the accused had nothing to do with said horse;
that the horse was taken out of the possession of the accused by the
aforesaid J. T. Wilkinson at his house, and was not in the possession
of the accused more than ten minutes; that the accused had been
pulling fodder for Mr. Estien in Grimes county, near the line of
Grimes and Walker counties, and was on his way home to his father's
home, who resides near Huntsville, in Walker county, when he accepted
the invitation of the said Phil. Blue to ride behind him, the said Blue
going in the direction of Huntsville?- Affiant further says that the
above facts are true.*
The said witness is not absent by the procurement or consent of
the accused, 2 and this application for a continuance is not made for
delay. 3 [Affiant further says that there is no reasonable expectation
that attendance of the said Fayett Gibbs can be secured during the
present term of the court by a postponement of the trial to some
future day of said term.] 4
his
Louis x Dinkens.
mark
(Jurat as in Form No. 6295. ) 5
ment can issue, and no averment Tex. Code Crim. Proc. (1895), art. 597,
relative to an attachment is necessary, subd. 4. See also supra, note 5, p. 345.
Tex. Code Crim. Proc. (1895), art. 524. An affidavit stating that the wit-
A precedent of this kind is exhibited ness was not absent by the " fraud of
supra, note on p. 403, in the case of the defendant" was held an insuffi-
Beach v. State, 32 Tex. Crim. Rep. 241. cient compliance with the foregoing
It is not sufficient to state in general provision. Bresnan v. People, (Tex.
terms that the applicant has used due Crim. App. 1897) 43 S. W. Rep. in.
diligence; he must state what acts of 3. Application Not Made for Delay.
diligence he has done. Tanner v. State, The affidavit must state " that the ap-
(Tex. Crim. App. 1898) 44 S. W. Rep. plication is not made for delay." Tex.
489. See also supra, note 5, p. 339. Code Crim. Proc. (1895), art. 597,
1. Statement of Expected Testimony and subd. 5. See also supra, note 7, p. 347.
Materiality Thereof . The affidavit must 4. Necessity for Continuance Over the
state " the facts which are expected to Term. The averment in brackets is
be proved by the witness, and it must required by Tex. Code Crim. Proc.
appear to the court that they are mate- (1895), art. 597, subd. 6.
rial." Tex. Code Crim. Proc. (1895), 5. Jurat. There was no jurat in the
art. 597, subd. 3. See also supra, note report of the case, but Tex. Code
7, p. 335. Crim. Proc. (1895), art. 599, provides
2. Witness Not Absent by Procurement, that "all applications for continuance
etc. The affidavit must state "that on the part of the defendant must be
the witness is not absent by the pro- sworn to by himself."
curement or consent of the defendant."
404 Volume 5.
6298. ADJOURNMENTS. 6299.
TEXAS CRIMINAL CASE SECOND OR SUBSEQUENT APPLICATION.
Form No. 6298."'
(Commencing as in Form No. 6297, and continuing down to *). That
the same testimony cannot be procured from any other source known
to the affiant, 2 and that the affiant has reasonable expectation of pro-
curing the same at the next term of the court 3 (concluding as in Form
No. 6297).
6. For Absence of Documents. 4
Form No. 6299.
( Title of court and cause, and venue and commencement. ) 5 That cer-
tain papers and documents, material to their defense in this cause,
are now in the hands of Antonio M. Mico, who resides at and whose
post-office address is San Blais, Mexico, and among the said papers and
documents the defendants specify the following: (i) The original de-
nouncement of the mine of New Almaden and the judicial possession
given of the same in the year i&45. (2) The confirmation of said
denouncement and possession by the supreme government of
Mexico in the year 18^6, and prior to the late declaration of war by
the United States against the republic of Mexico. (3) The original
grant of land, including said mining possession, made by the supreme
government of Mexico (prior to the declaration of war as aforesaid)
to the owners of said mine. (4) The original documents showing
the ownership of said mine and land in the parties from whom the
defendants derive title; and the defendants verily believe that the land
ferred to in said papers and documents is the same land as that upon
which the pretended trespass is alleged in plaintiff's complaint to
have been committed. And the defendants further s^ay that they
have exercised all due diligence to procure the said papers and docu-
ments at the present term of this court, by writing on the twentieth
day of November, i860, to the said Antonio M. Mico at San Blais,
Mexico, who holds them, but to this date the defendants have not
1. Applications for continuance on (1895), art. 598, subd. 2. See also supra,
the part of the defendant subsequent to note 8, p. 345, note 3. p. 347.
the first must be supported by an affi- In Tanner v. State, (Tex. Crim. App.
davit stating in addition to what is re- 1898) 44 S. W. Rep. 489, the affidavit
quired in first applications, as shown stated that the applicant expected to
in Form No. 6298, the facts specified in procure the attendance of the witness
the following notes. Tex. Code Crim. at a subsequent term because the wit-
Proc. (1895), art. 598. ness was under indictment in the same
2. Testimony Not Elsewhere Obtainable, county in a local option case. "It is
The affidavit must state "that the questionable," said the court, " whether
testimony cannot be procured from any this fact would justify the assertion in
other source known to the defendant." his application of his expectation. It
Tex. Code Crim. Proc. (1895), art. 598, might suggest the contrary."
subd. i. See also supra, note 2, p. 343. 4. As a Ground for Continuance. See,
3. Expectation of Procuring Testimony, generally, article CONTINUANCES, 4
The affidavit must state "that the Encycl. of PI. and Pr. 849, 880.
defendant has reasonable expectation 5. For title of court and cause, and
of procuring the same at the next term venue and commencement of affidavits
of the court." Tex. Code Crim. Proc. for continuances, generally, see Forms
Nos. 6272 to 6297, supra.
405 Volume 5.
6300. CONTINUANCES AND 6300.
received them, this delay having been caused, as defendants verily
believe, by the failure of the mail steamers running from Panama
to San Francisco to touch, as heretofore has been their custom, at the
port of San Blais in Mexico, from which place the defendants have
expected, and still expect, to receive said papers. 1
And the defendants further aver that the said papers and docu-
ments for which they have sent as aforesaid, and which they are
daily expecting to receive, are absolutely necessary to them in the
above entitled cause, and that they cannot proceed with the trial of
the cause without said papers and documents; that they expect and
believe they can procure the same by the next term of this court;
and that this application is not made for delay, but that justice may
be done.
(Signature and jurat. ) 2
7. On Account of Another Suit Pending*.
GARNISHMENT PROCEEDINGS PENDING IN ANOTHER STATE. 3
Form No. 6300.
(Title of court and cause, and venue ana commencement}* that
heretofore, to wit, on the third day of January, in the year \W8,
John Jones commenced an action of debt against the said John
Doe, the plaintiff herein, for the sum of one thousand dollars and
damages, in the District Court, in the state of Nevada, and duly prose-
cuted his said claim to final judgment, which sum is largely in
excess of the amount sought to be recovered by said plaintiff herein,
to wit, five hundred dollars in excess thereof; that on the tenth day
of March, in the year iB98, and before the commencement of this
action, a writ of garnishment was, at the instance and in the name of
the said John Jones, duly issued, according to the laws of the said
1. This form is a slight modification supposed reason for failure to obtain it,
of an affidavit used in an ejectment (5) Reasonable expectation that it will
case in California, which is quoted in be procured by the next term, (6)
U. S. v. Castillero, 2 Black (U. S.) 37. That the application is not made for
In some of the states there is no delay.
express statutory provision or rule of The forms of affidavits for continu-
court concerning affidavits for continu- ance on account of an absent witness
ance on account of the absence of (Forms Nos. 6272 to 6298), and the
documentary evidence. In other states notes thereto, should also be consulted
affidavits for continuance on this ground for local statutory provisions, if any
are regulated in the same section of there be, which apply to all affidavits
the statute which prescribes the requi- for continuance; as, for instance, that
sites of affidavits for continuance on the affidavit must state an excuse for
account of an absent witness. It is not making an earlier application,
believed that this form not only meets 2. Signature and jurat of affidavits
the requirements of any local unwrit- for continuances, generally, see Forms
ten rule of practice, but also complies Nos. 6292 to 6297, supra.
with any of the statutory provisions 3. As a Ground for Continuance. See i
just mentioned. The practitioner will Encyc. of PI. and Pr. 767.
observe that it shows: (i) The materi- 4. For title of court and cause and
ality of the evidence, describing it, (2) venue and commencement of affidavits
Where the evidence is believed to be, for continuances, generally, see Forms
(3) Diligent efforts to obtain it, (4) The Nos. 6272 to 6297, supra.
406 Volume' 5.
6301. ADJOURNMENTS. 6301.
state of Nevada, to wit {Here plead the statute authorizing the proceeding),
commanding this defendant to appear in said-court on the
day of March, in the year \W8, and answer under oath what he
was at that time indebted to the said John Doe, the defendant in said
proceedings and the plaintiff herein; that this defendant did so
appear as he was commanded to do in and by said writ of garnish-
ment, and did make statement under oath in said court as by said
writ he was required to do, that he was indebted to the said John Doe
in the sum oi five hundred dollars, which is the same debt sought to
be recovered by the said _/#// Doe in this action, and no other; that
said writ of garnishment was duly issued according to the laws of said
state, providing that (Here state the due performance of the conditions
precedent to the issuance of the writ), and was duly served on this
defendant before the icturn day thereof, and was duly returned to
said court, and that said debt, due from this defendant to the said
John Doe as aforesaid, was then and there placed in the custody of
the law; that said garnishment and attachment proceedings are still
pending and undetermined in the said court of the said state; and
that this application is not made for delay, but that justice may be
done. (Signature and jurat.) x
8. FOP Surprise at Trial. 2
a. By Amendment of Pleadings. 1
Form No. 6301 .
(Title of court, cause and venue as in Form No. 6285.)
1. Signature and jurat of affidavits for Kansas. Gen. Stat. (1897), c. 95,
continuances, generally, see Forms 142.
Nos. 6272 to 6297, supra. Kentucky. Code Civ. Proc. (1888),
2. For Surprise at Trial. The motion 136.
should be made promptly and sup- Missouri. Burns' Anno. Pr. Code
ported by affidavit. 4 Encycl. of PI. (1896), 503.
and Pr. 863 ft seq. Nebraska. Comp. Stat. (1897),
3. At common law, it was conclusively 5738.
presumed that the defendant in any Ohio. Bates' Anno. Stat. (1897),
suit was surprised and unprepared for 5117.
trial whenever the declaration was In Georgia, "When any amendment
amended in any material particular, shall be made to pleadings or other pro-
and the cause had to be continued, if ceedings in the cause, if the opposite
the defendant desired it, without any party will make oath, or his coun-
affidavit therefor. Chicago, etc., R. Co. sel state in his place, that he is sur-
v. Goyette, 32 111. App. 576; Illinois prised by such amendment, and that he
Mut. F. Ins. Co. v. Marseilles Mfg. Co., is less prepared for trial, and how, than
6 111. 236; Hawks -v. Lands, 8 111. 227; he would have been if such amend-
Schnertzel v. Purcell, i Cranch (C. C.) ment had not been made, and that such
246! surprise is not claimed for the purpose
By statute, in many of the states, the of delay, the case may be continued in
amendment of pleadings does not war- the discretion of the judge, and charged
rant a continuance, unless the court is to the amending party." Code (1895),
satisfied by affidavit, or otherwise, that 5128. See for a case of reversible
the adverse party cannot be ready for error in refusing to allow a continu-
trial in consequence of the amendment, ance Central R., etc., Co. v. Jackson,
Arkansas. Sand. & H. Dig. (1894), 94 Ga. 640.
5774. In Indiana, "No cause shall be de-
lowa. Anno. Code (1897), $ 3602. layed by reason of an amendment ex-
407 Volume 5.
6301.
6301.
Richard Wolfe^ being first duly sworn, on oath says that he is the
defendant in the above entitled cause; that on the trial the plaintiff,
ceptingonly the time to make up issues,
but upon good cause shown by affidavit
of the party or his agent asking such
delay;" and "the affidavit shall show
distinctly in what respect the party
asking the delay has been prejudiced
in his preparation for trial by the
amendment." Homer's Stat. (1896),
394, 395-
In Danley z>. Scanlan, 116 Ind. 10, the
substance of an affidavit for a continu-
ance by the defendant is set forth,
which was held a sufficient showing of
surprise on account of an amendment
of the complaint on the trial, and judg-
ment was reversed for refusal to allow
a continuance.
Necessity for Affidavit. When the
statute positively requires an affidavit,
a motion for continuance without an
affidavit will be overruled. Chicago,
etc., R. Co. v. Stein, 75 111. 41; Lindsey
v. Lindsey, 40 111. App. 389; Clause v.
Bullock Printing Press Co., 20 111. App.
113. And an offer to make and file an
affidavit, without actually doing so, is
not enough. Ryan v. People, 62 111.
App. 355-
Discretion of Court. Even if the affi-
davit is formally sufficient, the refusal
of a continuance will not constitute
error where it appears that there was
no abuse of discretion. Chicago, etc.,
R. Co. v. Goyette, 32 111. App. 577.
For numerous cases where the re-
fusal of a continuance was sustained,
and others where it caused a reversal
of the judgment on appeal, see 4
Encycl. of PI. and Pr. 836 et seq.
Surprise. The affidavit must show
that the party was taken by surprise by
the amendment. Keltenbaugh v. St.
Louis, etc., R. Co., 34 Mo. App. 151;
Ledbetter v. McWilliams, 90 Ga. 44;
Atlanta Cotton-Seed Oil Mills v. Coffey,
80 Ga. 145; Peters v. West, 70 Ga. 343.
And that the amendment makes it
necessary to produce evidence which
would not have been required if the
amendment had not been made. Fisk
v. Miller, 13 Tex. 225.
Hence an amended pleading which
states only facts which could reason-
ably have been anticipated from the
pleadings as they before stood is not
a ground for continuance. Lamb v.
Beaumont Temperance Hall Co., 2
Tex. Civ. App. 289; Texas, etc., R. Co.
v. Neal, (Tex. Civ. App. 1895) 33 S. W.
Rep. 693; Wilcox t'. American Sav.
Bank, 21 Colo. 348; Jones v. Hender-
son, 49 Ga. 170; Wilson Coal, etc., Co. v.
Hall, etc., Woodworking Mach. Co., 97
Ga. 330; Constitution Pub. Co. v. Way,
94 Ga. 120; Lewis v. Bracken, 97 Ga.
337; Pifer v. Stanley, 57 Mo. App. 516;
Cozzens v. Chicago Hydraulic Press
Brick Co., 166 111.213.
And if there are several allegations
in the amendment the affidavit must
point out which allegation the appli-
cant regards as introducing new mat-
ter. Lamb v. Beaumont Temperance
Hall Co., 2 Tex. Civ. App. 289.
On the other hand, justifiable igno-
rance of an important amendment until
the trial demands a continuance on
proper application. Central R., etc., Co.
v. Jackson, 94 Ga. 640. Or new matter
pleaded on the eve of trial. Galveston,
etc., R. Co. v. Smith, 9 Tex. Civ. App.
450. Or on the trial. Vale v. Trader, 5
Kan. App. 307.
Meritorious Defense. The defendant's
affidavit for continuance must show
that he has a meritorious defense.
Though the statutes are silent on this
point, the courts enforce the rule. Kel-
tenbaugh v. St. Louis, etc., R. Co., 34
Mo. App. 151; Mills v. Bland, 76 111.
381; Cummings v. Rice, 9 Tex. 527. And
if the affidavit is evasive on this point it
will not sustain the motion. Ravens-'
wood Bank v. Hamilton, (W. Va. 1897)
27 S. E. Rep. 296, where the insufficient
affidavit is set forth verbatim. And it
must appear that he has a meritorious
defense to the claim shown by the
amendment as well as by the original
pleading. Colhoun v. Crawford, 50
Mo. 458.
Materiality of Expected Evidence. In
Storch v. McCain, 85 Cal. 307, it was
held that upon a motion for continuance
on the ground of absence of evidence
to meet the issues raised by the amend-
ment the affidavit must show the ma-
teriality of the evidence expected to
be obtained and that due diligence has
been used to obtain it.
1. The form in the text is suggested by
the affidavit set forth in Wolfe v.
Johnson, 152 111. 283, which was held
insufficient, but is herein modified and
expanded in some essential particulars.
It is here assumed that the action is
trespass on the case to recover dam-
ages under section 9 of the Dram-shop
408
Volume 5.
6301.
AD JO URNMENTS.
6301.
by'leave of court, amended the declaration filed herein by filing an
additional count which the defendant believes and is advised by his
counsel makes a substantially different case from that made by the
original declaration, and that in consequence thereof the defendant
is unprepared to proceed to and with the trial of the cause at this
term; that it is alleged in the additional count \\\a.\. James Wolfe kept
a dram-shop with the knowledge of this defendant on July 1st, i&90,
and then sold intoxicating liquors to the plaintiff's husband; that until
such additional count was filed the defendant supposed that the
plaintiff intended to produce testimony only to prove that the defend-
ant was the keeper of the dram-shop and sold said liquors to her
husband, all of which the defendant denies; that if the fact alleged
in the additional count had been alleged in the original declaration
the defendant could and would produce James Wolfe, who would
testify that he did not sell or give any kind of intoxicating liquors
whatsoever to the plaintiff's husband on July 1st, i890, nor at any
other time before or since that date; 1 and the defendant believes that
act (Rev. Stat. 111., c. 43), the
plaintiff's declaration alleging that on
July ist, 1890, the defendant, Richard
Wolfe, was the keeper of a dram-shop,
and being such keeper, sold intoxi-
cating liquors to the plaintiff's husband
and caused him to become intoxicated,
whereby, etc. The defendant files a
general denial. On the trial the plain-
tiff is allowed to amend his declaration
by filing an additional count charging
that one James Wolfe was the keeper
of a dram-shop, and being such keeper
sold intoxicating liquors to the plain-
tiff's husband on July ist, 1890, thereby
causing him to become intoxicated;
that the defendant was then the owner
of the building in which such dram-
shop was kept; that he had knowledge
that a dram-shop was kept in said
building and that intoxicating liquors
were sold therein; and that he per-
mitted the said James Wolfe to keep
said dram-shop and sell intoxicating
liquors therein; and that in conse-
quence of such intoxication so as above
produced in her husband the latter
assaulted, beat and bruised her, etc.,
and that the defendant was liable to
her as such owner. Whereupon the
defendant moves for a continuance and
files his affidavit as herein set forth.
In Illinois, in common-law actions,
" no amendment shall be cause for
continuance unless the party affected
thereby or his agent or attorney shall
make affidavit that in consequence
thereof he is unprepared to proceed to
or with the trial of the cause at that
term, stating in such affidavit what
particular fact or facts the party ex-
pects to prove by such evidence and
that he verily believes that if the cause
is continued he will be able to procure
the same by the next term of the
court." Starr & C. Anno. Stat. 111.
(1896), p. 3001, par. 26. See also as to
affidavit for continuance on account
of amendment of pleadings in chancery
Starr & C. Anno. Stat. 111. (1896), p. 589,
par. 37.
1. The particular facts which the ap-
plicant expects to prove must be set
forth. Cassem v. Galvin, 158 111. 34;
Evans v. Marden, 154 111. 446.
Insufficient Form, and Comments of
Court. In Mills v. Bland, 76 111. 381,
upon amendment of the declaration
the defendant moved for a continuance
upon an affidavit as follows: " Erastus
W. Mills, being duly sworn, upon his
oath says he is one of the defendants
in the above entitled cause and that
he is not prepared to proceed to trial
on account of the amendments at this
term and believes he will be ready
at the next term." The court said:
"The affidavit fails to show that the
defendants had any defense whatever
upon the merits to the action or that
they were taken by surprise by the
amendment made to the declaration.
The affidavit in order to authorize a
continuance of the cause should have
contained facts from which the court
could have seen that by reason of the
amendment made the defendants were
not then ready for trial and that at
another term of court a meritorious
defense could have been interposed to
" the plaintiff's cause of action."
409
Volume 5.
6302. CONTINUANCES AND 6302.
said facts are true. The defendant says that said James Wolfe is now
in the city of New York, and was not present at the trial because the
defendant did not know that his testimony would become material
under the issues made by the pleadings; and the defendant verily
believes that if this cause is continued he will be able to procure the
testimony of said Wolfe to the facts as above stated by the next term
of this court. {Signature and *urat as in Form No. 6285.)
b. By Suppression of Deposition.
Form No. 6302.
(Precedent in Grigsby v. May, 57 Tex. 256.)
D. B. Grigsby et al.,
No. 8862.
vs.
W. H. Bffii'les et al.
Now come the plaintiffs in the above entitled cause and move the
court to [permit them to withdraw their announcement of ready, and
to] x grant them a continuance of this cause as to the defendant M.
A. May, because the court has, upon the verbal motion of defendant,
excluded the depositions of Lucinda Madden and D. H. Edens, for
the reason that plaintiffs are unable to make proof of service upon
said defendant of notice of filing interrogatories upon which said depo-
sitions were taken; plaintiffs aver that they cannot go to trial
without the said depositions; that plaintiffs claim the land in con-
troversy herein as the heirs of their mother, Louisa Edens, formerly
Louisa Grigsby; that in order to establish their title to said land it is
necessary for them to show that said land was a part of the community
estate of their said mother and her former husband, John Grigsby,
and also to show that they are the children of their said mother, and
the number of children that their said mother had; that by said depo-
sitions they have fully proved how many children their said mother
had; that they are the children of said Louisa Edens, formerly
Grigsby; that she is dead, and that the land in controversy was a
part of the community estate of their said mother; that they know
of no other witnesses by whom they can prove these facts; that they
caused these said depositions to be taken for the purpose of proving
these facts; that after filing the interrogatories upon which said depo-
sitions were taken, and long before the issuance of the commission
to take said depositions, plaintiffs had a precept regularly prepared
and issued by the clerk of this court and directed to the sheriff or
any constable of Dallas county, commanding him to notify the said
defendant, who is, and was then, a resident of Dallas county, Texas,
that said interrogatories had been filed and that said depositions
would be taken; that immediately upon its issuance said precept was
placed in the hands of some proper officer to be by him served, but
what officer plaintiffs do not now remember; that plaintiffs had made
diligent search for said precept, but the same cannot now be found;
1. Where the statute does not, as in for trial, the words in brackets should
Texas, require announcement of ready be omitted.
410 Volume 5.
6303. ADJOURNMENTS. 6303.
that plaintiffs do not know of any one by whom they can prove the
fact of the service of said precept; that no motion has ever been
filed by said defendant to suppress said depositions for want of such
notice, although said depositions have been on file among the papers
of this cause since the first day of November, A. D. i870; that plaintiff
had no notice before the commencement of this trial that defendant
would object to said depositions on account of a want of such notice,
and plaintiffs have been surprised by the ruling of the court in re-
quiring plaintiffs to make proof of such notice, and in sustaining the
verbal motion of defendant to exclude said depositions for want of
said proof of said notice. Plaintiffs aver that the said Lucinda
Madden and D. H. Edens are now, and have been since the institu-
tion of this suit, residents of Houston county, Texas, and are not
now in Dallas county; that plaintiffs will have the testimony of said
witnesses by the next term of this court; that this application for a
continuance is not made for delay, but that justice may be done.
This application is made and sworn to by Jeff. Word, Jr., and
Richard Morgan, attorneys for plaintiffs, because the said plaintiffs
are not present. They do not reside in Dallas county, and are not
now in Dallas county. 1
Jeff. Word, Jr.
Richard Morgan.
Sworn to and subscribed before me,
H. W. Jones, Clerk District Court, Dallas Co.
e. By Forged Written Evidence.
Form No. 6303.
(Precedent in Hastings v. Hastings, 31 Cal. 96.)*
[In the Superior Court of the county of Solano, state of California^
S. C. Hastings, plaintiff, \ ^
against > Affidavit for Continuance.
D. N. Hastings, defendant. )
State of California, ) -, 3
County of Solano. [ J
L. B. Mizner, being duly sworn, says that he is the attorney for the
plaintiff in the above entitled action, and that since trial of said
1. The supreme court said: "There ance showed the materiality of the
was error in the action of the court in evidence and was otherwise sufficient
sustaining an oral objection to the depo- the motion should have been sus-
sitions, for which the judgment must tained."
be reversed. The court also erred in For another case of surprise by the
overruling the motion of plaintiffs to suppression of depositions see Moore
withdraw the announcement of readi- v. Smith, 88 Ky. 151.
ness for trial and continue the case 2. The case was tried before the
based upon the erroneous ruling above court, a jury having been waived. It
stated. The depositions had been on was held that a continuance on this
file over two years and no objection affidavit was a proper exercise of dis-
was made to the same until offered in cretion.
evidence on the trial. Under the cir- 3. The words to be supplied in [ ]
cumstances the plaintiff could well are not found in the reported case, but
claim that they had been taken by sur- have been added to render the form
prise, and as the affidavit for continu- complete.
411 Volume 5.
6304. CONTINUANCES AND 6304.
action x he has discovered that the pretended receipt offered in evi-
dence in said case, purporting to have been signed by said S. C.
Hastings in favor of said D. N. Hastings for one thousand and eighty
dollars, was in fact signed by said S. C. Hastings for Lloyd Tevis, and
that the name " Lloyd Tevis " has been removed from said receipt
without, as this deponent believes, the consent of said S. C. Hastings
or Tevis, and that said fact, or at least some word or words, or name,
has or have been removed from said receipt in fraud of and to the
prejudice of said Hastings in this action, and that the same appears
upon the face of said receipt; that this deponent had never seen said
receipt until it was produced in the trial of this case yesterday, and
that no copy of said receipt appears in the pleadings or was ever
served upon the deponent or the said plaintiff, to the best of depo-
nent's information and belief; that deponent objected to the intro-
duction of said receipt on the ground that the same had been altered.
Whereupon deponent asks that this case be reserved for further
consideration until the next regular term of the court; that this
application is not made for delay but that justice may be done.
L. B. Mizner.
Subscribed and sworn to before me this 19th day of May, i8&5.
W. J. Costigan,
Deputy Clerk.
9. Additional or Amended Affidavit. 2
Form No. 6304 .
(Precedent in Bryce v. Jones, 38 Tex. 2o6.) 3
[( 1 tile of court, cause and venue as in Form No. 6295.*)]*
With leave of court, now come plaintiffs and say, that on yesterday,
since 12 o'clock, one of the plaintiffs, W. M. Bryce, went to the resi-
dence of the said witness, A. P. Swisher, for the purpose of securing
his attendance, so that there might not be a failure of trial in con-
sequence of his absence, and for the purpose of tendering said wit-
ness his fees, and requesting said witness to be present upon the
1. The court held, however, that al- attachment after obtaining the post-
though the judge had orally announced ponement on the preceding day. But
his decision, the case had not been the precedent is instructive in that it
tried to a legal intent, since the de- illustrates the possible utility of an ad-
cision itself had not been entered in the ditional or amended affidavit in supply-
minutes, or reduced to writing by the ing details relating to diligence used
judge, and signed by him and filed which may not have been stated with
with the clerk, as the statute required, sufficient fullness in the original affi-
2. When Allowable. See 4 Encycl. davit. See also State v. Evans, i Overt,
of PI. and Pr. 875. (Tenn.) 216; Lucas v. Sevier, i Overt.
3. The original and counter affidavits (Tenn.) 105; McNealley v. State, (Wy-
are set forth in Form No. 6308, and the oming, 1894) 36 Pac. Rep. 824; Petty v.
note to that form. State, 4 Lea (Tenn.) 326; Com. v.
The showing for a continuance by Hourigan, 89 Ky. 305.
the original and amended affidavits 4. The words and figures enclosed
was held to be insufficient for the by [ ] are not found in the reported
reason that the plaintiff who demanded case, but have been added to complete
the witness should have resorted to an the form.
412 Volume 5.
6305. ADJOURNMENTS. 6305.
trial of this cause when called this morning. Plaintiff further states,
that the said Swisher was not at home when the said Bryce went to
see him yesterday, and could not be found. Plaintiff further states,
that the said Swisher did, on Friday last, the thirty-first 'day of March,
iS71, during the term of this court, and before this case was ever
reached or called, promise plaintiff that he would not fail to be
present and testify as commanded to do by the subpoenas served
upon him as aforesaid. Plaintiffs state that the said Bryce remained
at the residence of the said Swisher until after dark on yesterday,
waiting for him to return home, but said Swisher did not come.
Plaintiff would further state, that he left word with the said Swisher s
wife to tell the said Swisher to be certain to be in attendance upon
the court by 9 o'clock A. M. of today. Plaintiffs would further
represent that the said Swisher resides about ten miles from this
place. Plaintiffs deny that they ever agreed to try this case absolutely
on today; but the postponement was merely for the purpose of hav-
ing their attorney present to attend to the case when called. [{Jurat
as in Form No. 6295.)Y
W.M. Bryce.
IV. CERTIFICATE OF PHYSICIAN^
Form No. 6305.
(Precedent in State v. Maddox, 117 Mo. 680.)*
Ely, Mo., September 5, i892.
This is to certify that I waited upon the wife of Morg an Maddox
the night of August 25, 1 892, and that abortion took place about twelve
o'clock of said night. She had a severe chill and temperature rose
1. The words and figures enclosed in the opinion the court said: " It
by [ ] are not found in the reported was admitted and conceded by the
case, but have been added to complete prosecuting attorney that the certificate
the form. was in the genuine and proper hand-
2. The court is not bound to grant a writing of Dr. Mattox, and that at the
continuance on the certificate of a phy- date it was given Dr. Mattox was a
sician. Waarich v. Winter, 33 111. regularly practicing physician in good
App. 36. And in Randall v. United L., standing near Ely, Marion county,
etc., Ins. Assoc., (Super. Ct.) 14 N. Y. Missouri."
Supp. 631, the certificate was disre- In commenting upon the certificate
garded because it was not verified. and affidavit the court said: " Her
Not a Substitute for Affidavit. An un- [the wife's] condition was fully corrobo-
verified certificate of a physician cannot rated by her physician's certificate,
be accepted in lieu of an affidavit which The only possible suggestion that can
is required in ordinary cases. Harlow be made against the sufficiency of this
v. Warren, 38 Kan. 480, where it is affidavit is that the physician's certifi-
suggested that the affidavit of the phy- cate does not say she was too ill to have
sician would have been sufficient. her deposition taken, but the affidavit
3. This certificate was presented in does, and the physician's certificate dis-
connection with the affidavit for a con- closes a condition in which the court as
tinuance by the defendant in a criminal well as an expert could see the defend-
case on account of the absence of a ant's wife ordinarily would be in no
material witness, the affidavit alleging condition to stand the excitement of the
that she was too sick to attend court, examination and cross-examination in
The affidavit is in Form No. 6291. a trial involving the liberty of her hus-
Preceding the certificate as set forth band."
413 Volume 5.
6306. CONTINUANCES AND 6308.
to one hundred and Jive degrees, pulse one hundred and fifty, with
delirium, showing all the symptoms of septicaemia, resulting from
the absorption of putrid foetus and its membranes, and I should not
think it would be safe for her, under the most favorable circum-
stances, to leave her room under six weeks from the time the abor-
tion took place.
S. Mattox, M. D.
V. STIPULATION FOR CONTINUANCE.
1. In General.
Form No. 6306.
(Precedent in Alton v. tilmanton, 2 N. H. 52O.) 1
Town of Alton \
v. > February Term, i8##.
Town of Gilmanton. )
The parties agree that this action shall stand continued. The
plaintiff agrees to abandon the first and last articles in the account,
and the defendant agrees to waive all objections to the notice 1 and
service of the notice and form of the plaintiff's writ.
Neh. Eastman, for Plaintiff.
Stephen Moody, for Defendant.
2. In Justice's Court.
Form No. 6307.
(Precedent in DeMott v. Taylor, 51 N. J. L. 308.)*
To Justice Schor.
It is hereby stipulated between the said plaintiff and the said
defendant that this case stands adjourned to Friday, December 16th,
i87, at 2 P. M., at Justice Schor s office, in Leonia, and without preju-
dice to either party.
William Taylor, plaintiff.
Henry J. DeMott, defendant.
Dated December , i87.
VI. COUNTER AFFIDAVITS. 3
1. The action was assumpsit for relief action be adjourned from April tenth
furnished to a pauper, and the notice to April fourteenth, 1897, at two o'clock
referred to in the stipulation was the /. m., with consent to both parties to
statutory notice of supplies furnished, file their pleadings on said last men-
which is a condition precedent to lia- tioned day.
bility. The stipulation was executed Dated April jth, i8<P/.
in court, and it was held that the T. F. O'Hair, Plff's Atty.
waiver contained therein was binding. J. Bohmbach, Deft's Atty."
2. Another Precedent. In Johnson v. 3. Admissibility of Counter Affidavits
Hagberg, 48 Minn. 221, will be found In the Absence of Statutes or Jfules of
the following stipulation for a continu- Court. In the case furnishing this
ance in a justice's court: precedent the court said: "In the
(Title.) "The parties to this action case of Hyde v. State, 16 Tex. 453, Mr.
hereby stipulate and agree that this Justice Wheeler elaborately reviewed
414 Volume 5.
6308.
AD JO URN MEN TS.
Form No. 6308.
6308.
(Precedent in Bryce v. Jones, 38 Tex. 205.)'
the authorities and laid down the rule
that counter affidavits are admissible
to disprove due diligence. We have
long felt the necessity of the applica-
tion of this rule in second and subse-
quent applications under our statute.
If the affidavit for continuance re-
mains uncontradicted, it forces the
court to a continuance of the cause
where the suspicion of bad faith and
want of diligence is irresistible."
To the extent indicated in the fore-
going quotation it is believed that the
weight of authority favors the admis-
sion of counter affidavits. State v.
Murdy, 8r Iowa 603; State v. McCoy,
Hi Mo. 517.
Other cases go further and hold that
"although it is not in general admissi-
ble to file counter affidavits controvert-
ing the truth of the application for a
continuance. * * * yet where the coun-
ter affidavit is made by the witness
mentioned in the application, then the
counter affidavit may be received to
controvert the truth of allegations made
in the application respecting the affiant
witness." State v. Hilsabeck, 35 Tex.
Crim. Rep. 525. See also Wilkins v.
State, (Tex. Crim. App. 1896) 132 Mo.
348.
In State v. Good, 132 Mo. 114, it was
said that counter affidavits "are not
permitted to controvert the truth of the
allegations made by the applicant for
a continuance as to what the testimony
of the witnesses would be, and this
seems to be the general rule where
counter affidavits are allowed, except
where fraud or imposition is suggested,
or there is good reason to believe the
object is delay." See also Cunneen v.
State, 95 Ga. 330; Wells v. Com., (Ky.
1890) 13 S. W. Rep. 915; Bowling v.
Whatley, 53 Ga. 24.
In McClurg v. Inglehart, (Ky. 1895)
33 S. W. Rep. 80, the court said: " The
rule of practice seems to be that, where
the affidavit is in reference to absent
witnesses, setting forth fully and with
certainty what he expects to prove by
them, giving their names and showing
diligence, that then this cannot be con-
troverted by counter affidavits; and this
rule is stated because, it is said, the
code has specifically pointed out the
particular manner by which one desir-
ing a trial can obtain the same against
such affidavit, and that is by admitting
that the witnesses,- if present, would
testify as stated by the applicant; and
that, the code having specifically done
this, it means that the matter as to the
ground of continuance is no longer in
the discretion of the court."
Some cases seem to discountenance
the use of counter affidavits altogether.
Petit v. State, 135 Ind. 393; Eslinger v.
East, loo Ind. 434; State v. Simien, 30
La. Ann. 296; State v. Abshire, 4.7 La.
Ann. 542; Price v. People, 131 111. 231.
But, as was said in Waarich v. Winter,
33 111. App. 36, after holding that the
trial court erred in allowing counter
affidavits to be read: " Such error will
not constitute ground for reversal
where the affidavits for continuance are
not sufficient. In such case the counter
affidavits will not be regarded as
inducing the refusal of the continu-
ance."
Where Continuance is Sought for
Absence of Party. See supra, note on
P- 329-
The allowance of counter affidavits or a
counter showing to an application for
continuance is regulated by statute or
rule of court in some jurisdictions.
Arkansas. Sand. & H. Dig. (1894),
5797.
Georgia. 2 Code (1895), 966.
Iowa. Anno. Code (1897), 3668.
Maine. Rules Supreme Jud. Ct.,
No. 15.
Massachusetts. Rules of Pr. at Com.
L., No. ii (104 Mass. 558).
Montana. Rules Dist. Ct. (4th Jud.
Dist.), No. 12.
New Mexico. Comp. Laws (1884),
2052.
North Carolina. Code Civ. Proc.,
402; as amended Acts (1885), c. 394.
Ohio. Rules Ct. Com. PI., No. io/z,
adopted Oct. i, 1891.
South Dakota. Rules Cir. Ct. (6th
Jud. Cir.), No. 30.
Texas. Code Crim. Proc. (1895),
arts. 601, 602.
1. In this case there was filed the
original affidavit set forth in the next
note but one, this counter affidavit (the
precedent set out in the text, Form No.
6308), and the additional or amended
affidavit set out in Form No. 6304.
415
Volume 5.
6309.
CONTINUANCES AND
6309.
[ ( Title of court and cause, and venue as in Form No. 6295. )] 1
And now comes the defendant Moore, who resists the application for
continuance made by plaintiffs 2 on account of the absence of the
witness, Swisher, and says that this cause was regularly reached in its
call upon the docket yesterday at 12 o'clock; this witness was then
absent and in contempt of the court, and this within the knowledge
of the plaintiff, Bryce, and his attorney, J.D. Sayers; that said case
was postponed upon request by plaintiff till 9 o'clock this morning;
that it was the duty of plaintiff to take other and different modes
of compelling the attendance of said witness, instead of relying upon
said subpoena or order to continue said cause. That said witness re-
sides about ten miles from the court-house, so this defendant is
informed and believes. [{Signature and jurat as in Form No. 6295.)] 1
VII. ORDER OF CONTINUANCE. 3
ORDER FOR CONTINUANCF IN CRIMINAL CASE, AND REMAND OF PRISONER.
Form No. 6309.
(Precedent in McKay v. State, 12 Mo. 493.)
State of Missouri^
VS
Burt McKay and \ Indictment for Grand Larceny.
Hugh Gillespie. }
And now upon the motion of the attorney for the State, this
1. The matter enclosed by [ ] is not
found in the reported case, but added
to complete the form.
2. The application alluded to was made
upon an affidavit which, omitting the
formal parts, was as follows: " Now
come plaintiffs and say, that they can-
not go safely to trial of this cause for
the want of the testimony of A. P.
Swisher, a witness for plaintiffs, who
resides in the said county of Bastrop
and State of Texas. Plaintiffs would
further represent that the testimony of
said Swisher is material to the case to
aid plaintiffs in the maintenance of
their suit. Plaintiffs would further
represent that they have used due dili-
gence to procure the attendance and
testimony of the said Swisher, in this,
that they caused subpoenas to be issued
for the said Swisher, and served upon
him at the following dates, to wit:
April 23, 1869; December 14, 1869; March
22, 187/5 said subpoenas being on file
and made a part of this affidavit and
hereto attached; and that the said wit-
ness has been in attendance at every
term of said court up to the present
term of the same. Plaintiffs would fur-
ther state that the said Swisher is not
absent with the consent or at the con-
trivance of plaintiffs, and that they ex-
pect to procure his attendance at the
next term of this court. Plaintiffs
would further state that they do not
know why the said Swisher is not in
attendance; that this their first applica-
tion for a continuance is not made for
delay; wherefore plaintiffs pray that
this cause be continued until the next
term of this court."
3. Order Continuing Cause by Consent.
In Tucker v. St. Louis, etc., R. Co., 54
Mo. 179, the order, omitting the formal
parts, was as follows: " Now at this day
appear the parties by their respective
attorneys, and by consent this cause is
continued to the December adjourned
term (4th day, No. 162.}"
Order for Continuance in Civil Case, and
for Payment of Costs. In Connett v.
Hamilton, 16 Mo. 445, the order, omit-
ting the formal parts, was as follows:
"And now here come the said parties
by their attorneys, and on motion of
the said plaintiff it is ordered that this
cause be continued until the next term
of this court and that the said plaintiff
pay the costs of the present term of
this court."
Order Continuing Cause to Perfect Ser-
vice. In Bakers. Thompson, 75 Ga.
416
Volume 5.
6310.
AD JO URNMENTS.
6310.
cause is continued to the next term of this court, and upon the
motion of the attorney for said defendants, it is ordered by the
court, that said defendants, Burt McKay and Hugh Gillespie, be
remanded to the common jail of St. Louis County, and that the Sheriff
of Jefferson County convey the bodies of the said defendants to the
said county of St. Louis, and there deliver them to the Jceeper of said
common jail of said county of St. Louis.
VIII. ORDER SETTING ASIDE ORDER FOR CONTINUANCE. 1
Form No. 6310.
(Precedent in McKay v. State, 12 Mo. 494.)*
Staff
v.
McKay and Gillespie.
And now it is here considered by the court that the order of con-
165, the order, omitting the formal
parts, was as follows: " There having
been no service of defendant in this case,
or waiver of service, upon motion of
plaintiff's counsel, it is ordered that said
case be continued until the next term of
this court."
Order for Continuance After Submission
to Jury. In Jackson v. State, 51 Ga.
403, the order, omitting the formal
parts, was as follows:
" It appearing to the court that James
Bass, who was qualified as a juror in
this case, served upon the grand jury
which found the true bill, it is, upon
motion of the solicitor-general, ordered
by the court that the case be withheld
from consideration by the jury, and
continued for trial."
Order for Continuance in Criminal Case.
In Jumpertz v. People, 21 111. 375,
the order, omitting the formal parts,
was as follows:
" And now on this day came the said
People by Carlos Haven, their artorney,
and on his motion it is ordered that
this cause be continued to next term."
In Kibler v. Com., (Va. 1897) 26 S. E.
Rep. 859, the order, omitting the formal
parts, was as follows: " This cause is
continued until the jth day of May,
1896 (it being the eighth day of next
term of the court for the common-
wealth), the attorney for the common-
wealth being physically unable to
proceed with the case, and six witnesses
who have been summoned for the
prosecution failing to appear, and the
importance of five of them being
known to the commonwealth's attor-
ney, as stated by him in open court."
Order Continuing Criminal Case on Stipu-
lation. In Kibler v. Com., (Va. 1897)
26 S. E. Rep. 859, the order, omitting
the formal parts, was as follows: " By
agreement of counsel this case is con-
tinued to the March term, 1896, of this
court, the commonwealth's attorney of
Page county being absent and engaged
in public service in the General As-
sembly of Virginia, now in session."
1. Affidavit resisting motion to set aside
continuance as given in McKay v.
State, 12 Mo. 494, omitting the formal
parts, was as follows:
"This day personally appeared in
open court, A. P. Field, who being duly
sworn, deposes and says that he is the
only counsel employed to defend the
above persons, that he is in possession
of the facts of their case; that their
cases have been continued until the
next term; that they were set for trial
on Tuesday; he further states that he is
employed in several important criminal
cases in the St. Louis Criminal Court,
some of them where he is the only
counsel, several of them set for trial on
tomorrow, which compels him to leave
this morning for St. Louis; he further
states that for the last two days he has
been laboring under severe indisposi-
tion, so much so that he is entirely
unable by reason of said indisposition
to attend to the defense of said McKay
and Gillespie, and that for the reasons
aforesaid, as well as others, he objects
to the setting aside the continuance.
A. P. Field.
Sworn to and subscribed in open
court, November joth, i8^<?.
T. H. Alford, Clerk."
2. On the second day of the regular
term this case had been continued until
5 E. of F. P. 27.
417
Volume 5.
6311.
CONTINUANCES AND
6311.
tinuance [and the order of transmission of said defendants to the
common jail of St. Louis county] 1 made herein, be set aside, 2 and
said cause is set for trial on the 18th day of December next, and it is
ordered that said defendants and their counsel be notified thereof. 3
IX. ADJOURNMENTS.
1. In General.
ORDER OF ADJOURNMENT OF TERM AND CONTINUANCE OF UNFINISHED
BUSINESS.
Form No. 6311.
the next regular term, upon the appli-
cation of the state. Three days there-
after, upon application of the state,
resisted by counsel for the prisoner, the
order of continuance was set aside and
the cause set for the i8th of December
as stated in the text, that date being
the commencement of an adjourned
term. For this "unsound exercise of
judicial discretion," a judgment of con-
viction was reversed and a new trial
granted.
Notice of the Motion. In Marsh v.
Morse, 18 Mo. 477, as also in the case
cited in the text, the party moving to
set aside the order of continuance gave
the opposite party notice of the motion.
And in Newell v. Clodfelter, 3 111. App.
259, reasonable notice to the opposite
party or his solicitor of an intended ap-
plication to set aside an order of con-
tinuance was held to be indispensable.
To the same point see Papin v. Buck-
ingham, 33 Mo. 456.
1. If the order be made in a civil case,
omit the words in brackets.
2. Power to Set Aside Order. There
is no doubt that during the term of
court at which an application for con-
tinuance is granted the court may for
sufficient cause vacate or set aside the
order at the instance of either party.
Marsh v. Morse, 18 Mo. 477; Lament v,
Williams, 43 Kan. 558; State v. Plow-
man, 28 Kan. 569; Chase v. People, 2
Colo. 513; Hunt v. Listenberger, (Ind.
1895) 42 N. E. Rep. 240. Even where
the continuance was granted by consent
of the parties. Gray v. Ulrich, 8 Kan.
112. And unless the record on appeal
shows the grounds upon which the ac-
tion of the court was based, it will be
presumed that they were sufficient.
Amory v. Reilly, 9 Ind. 490.
As an Exercise of Discretion. Al-
though the action of the court in the
matter is largely discretionary, Grid-
ley v. Capen, 72 111. 12, and will not
be disturbed by the appellate court
where the record does not show that
the party complaining was in any way
injured, Earner v. Bayless, 134 Ind.
605; Callahan v. State, 30 Tex, 488, it
is "ordinarily * * * improper after a
case has been continued to set aside the
continuance and dispose of the case in
the absence of one party and on the
application and in favor of the other."
Gray v. Ulrich, 8 Kan. 112, where,
however, it was said that the appellate
court would probably be constrained to
let a judgment rendered under such
circumstances stand until at least ap-
plication had been made to the court in
which it was rendered to vacate it.
Mattoon v. Hinkley, 33 111. 209; McKee
v. Ludwig, 30 111. 28; Taff v. Westerman,
39 Mo. 413.
Objection and Exception. A party
claiming to be prejudiced by an order
vacating a continuance should object
to the same and take an exception to
the action of the court, else the objec-
tion will be considered as waived.
Gridley v. Capen, 72 111. n. See also
Callahan v. State, 30 Tex. 488.
3. Notice of Order Vacating Continu-
ance. When a party procures a con-
tinuance, and at his instance the court
enters an order vacating the same, the
opposite party "should be served with
an authentic copy of the order. It
would be dangerous to trust to rumor,
or any other source of information than
a service of a copy of the order, to affect
a party with notice that the continuance
has been set aside. He then could ap-
pear and show cause why a trial should
not be held at that time." Marsh v.
Morse, 18 Mo. 478, granting a new trial
because the party complaining had no
formal notice.
418
Volume 5.
6312. ADJOURNMENTS. 6313.
(Precedent in State v. Ross. uS Mo. 41.)'
Ordered by the court that all business' pending and undisposed
of be, and the same is hereby, continued until the next regular term
of this court, and the court adjourned until court in course.
George Houck,
Special Judge for Manch Term, i&93.
2. Directing: Clerk to Adjourn.
a. Generally.
Form No. 6312.
(Precedent in Smith v. State, 4 Xeb. 284,)*
Fremont, Sept. 8, i875.
At the request of the attorneys of Buffalo county, I hereby adjourn
the district court of Buffalo county until the 2d Monday of next
December.
Samuel Maxwell, Judge.
b. By Mall.
Form No. 6313.
(Precedent in State v. Holmes, 56 Iowa 589.)*
Owing to the inability of the undersigned to reach the county-
seat in time to open court today, it is therefore hereby ordered
that the District Court for IVinneshiek county be and the same is hereby
adjourned until Thursday, the 10th day of March, iS81, at 9 o'clock
A. M.
Dated March 9, iSSl.
E. E. Cooley, Judge District Court,
10th Judicial District, Iowa.
1. Order Continuing Unfinished Buai- better form if it had specially desig-
ness. In Lamb v. State, 73 Ga. 588, is nated the September term as the one
found the following order: " There which the order was intended to affect,
being a number of cases on the com- The statute relating to adjournments
mon law, equity, motion, certiorari, in vacation provided that " If the judge
claim and criminal dockets of Taylor is sick, or for any other sufficient cause
Superior Court that have not been is unable to attend court, at the regu-
reached and disposed of during the larly appointed time, he may by a
present term for want of time, it is written order direct an adjournment to
ordered that all cases on any of the a particular day therein specified, and
dockets of said court that have not been the clerk shall on the first day of the
reached and disposed of be continued term, or as soon thereafter as he re-
until the next term of this court." ceives the order, adjourn the court as
2. This order was sent to the clerk therein directed." It was furthermore
five days before the time appointed by held that the order need not disclose
law for the court to be held. It was the cause for adjournment, and this
held that the adjournment by the clerk view is supported by State v. Pate, 40
pursuant to the order was effectual, al- La. Ann. 748, a case exactly in point,
though the order would have been in 3. See infra, note i, p. 420.
419 Volume 5.
6314. CONTINUANCES AND ADJOURNMENTS. 6315.
c. By Telegram.
Form No. 6314.
(Precedent in State v. Holmes, 56 Iowa 589.)'
Calmar, Iowa, March 9th, iS81.
To M. M. Harden, Clerk I have made and sent you a written
order adjourning court until tomorrow morning, nine o'clock.
Adjourn it accordingly.
E. E. Cooley, Judge.
3. Justice's Docket Entry.
Form No. 6315.
(Precedent in Anderson v. Southern Minnesota R. Co., 21 Minn. 30.)*
By consent of the parties, the case is adjourned until Monday,
September 23, i87#, at one o'clock in the afternoon.
1. This telegram was received by the the court shall stand adjourned till the
clerk at half past three o'clock p. m. next regular term. If the judge is
on March gth, which was the third day sick, or for any other sufficient cause is
of the term, and a few minutes before unable to attend court at the regularly
five o'clock p. m. of the same day he appointed time, he may, by a written
adjourned the court until March roth at order, direct an adjournment to a par-
nine o'clock a. m. At a quarter past ticular day therein specified, and the
six o'clock p. m. of March gth the clerk shall, on the first day of the term,
clerk received by mail the order set or as soon thereafter as he receives the
forth in Form No. 6313, supra. It was order, adjourn the court as therein
held that the adjournment upon re- directed."
ceipt of the telegram was a lawful 2. This was held a sufficient corn-
adjournment on a "written order" pliance with the statute requiring an
under the following statutory pro- entry on the docket of " every adjourn-
vision: "If the judge does not appear ment, stating to what time and place."
by five o'clock of the third day * * *
420 Volume 5.
CONTRACT LABOR LAW.
BY CHARLES E. HARRIS.
I. ACTION FOR PENALTY, 421.
II. CRIMINAL PROSECUTION, 424.
CROSS-REFERENCES.
For Forms relating to Exclusion of Chinese Laborers, see the title
EXCLUSION OF CHINESE LABORERS.
For matters of Substantive Law, see the title CONTRACT LABOR
LAW, 7 AMERICAN AND ENGLISH ENCYCLOPAEDIA OF LAW
( 2 d ed.), p. 83.
I. ACTION FOR PENALTY. 1
Form No. 6316.*
The Circuit Court of the United States of America for the District
of Massachusetts.
The United States of America \ M Law NQ ^.
^ / ag j m o t j \ Plaintiff's Declaration.
Charles E. Symonds. )
First count: And the plaintiff says that during the month of July,
in the year \W3, in a foreign country, to wit, in the city of Sheffield,
in England, the defendant did make and enter into a contract 3 with
one William Henry Bownes, said Bownes being then and there an
alien and a foreigner 4 and said contract being substantially in the
terms following, 5 to wit, that if the said Bownes would agree to migrate
and come to Salem, in the United States of America and common-
1. For the formal parts of a complaint 490; U. S. v. Craig, 28 Fed. Rep. 795.
or petition in a particular jurisdiction And the contract or agreement must be
consult the title COMPLAINTS, vol. 4, p. an enforceable contract, either express
1019. For the formal parts of a decla- or implied. U. S. v. Edgar, 45 Fed.
ration consult the title DECLARATIONS. Rep. 44.
2. United States. 23 Stat. at Large, 4. Immigrant an Alien. The statute
p. 332, c. 164, I, 3; Rev. Stat. (Supp. is directed only against alien im-
1891), p. 479, c. 164, S I, 3. migrants, and, consequently, alien
See insufficient declarations for pen- residents when returning after a tem-
alties under this statute in U. S. v. porary absence in a foreign country
Gay, 80 Fed. Rep. 255; Moller v. U. S., are not within its purview. In re Mai-
57 Fed. Rep. 491. ola, 67 Fed. Rep. 114; In re Martorelli,
3. Contract Before Immigration. The 63 Fed. Rep. 437; In re Panzara, 51
declaration must allege that previous Fed. Rep. 275.
to the immigrant's becoming a resident 5. Terms of Contract. In an action
of the United States he entered into a under this statute, a declaration is in-
contract to perform labor or service sufficient which fails to show, at least in
here. Moller v. U. S., 57 Fed. Rep. substance, the terms of the contract.
421 Volume 5.
6316. CONTRACT LABOR LAW. 6316.
wealth of Massachusetts, and to perform manual work and labor, to
wit, the work of a blacksmith,^- in said Salem, for said defendant, he,
the said defendant, would pay the said Bournes for said work and
labor the sum of twelve dollars per week, and would also prepay the
transportation or passage money of said Bownes from said England
to said United States. And said Bownes did, at said Sheffield, at the
time aforesaid, accept said offer of said defendant, and did then and
there promise said defendant to come to said Salem and there to
perform work and labor for said defendant in accordance with the
said defendant's said offer to him, said Bownes.
And the plaintiff further says that thereafter, to wit, in the month
of August in said year, said Bownes did, in pursuance and performance
of said contract, actually migrate 2 and come from said England into
said United States, to wit, to said Salem, and did, at said Salem, per-
form work and labor for the defendant in accordance with the terms
of said contract.
And the plaintiff further says that before, by and after the making
of said contract as aforesaid the defendant did knowingly encourage
and solicit the said Bownes to migrate and come into the said United
States, and did knowingly encourage and solicit the importation and
migration of said Bownes into said United States, both in the manner
aforesaid and also by prepaying, after the making of said contract,
and knowing said contract to have been made, 3 the transportation of
said Bownes from said England to said United States. And the
plaintiff further says that, at the time of the making of said con-
tract, and at the time of said encouragement and solicitation by the
said defendant, and at the time of his, said Bownes ' s, migration and
coming into said United States, he, said Bownes, was a foreigner,
whose migration and coming into said United States under contract
as aforesaid it was unlawful for the defendant to assist and encourage
as aforesaid, all of which the defendant, at the time of the making
of said contract and of said encouragement and solicitation, well
knew. Whereby and by force of the statute in such cases made and
provided, said defendant has. forfeited to the plaintiff the sum of one
thousand dollars, and by force of said statute an action has accrued
to the plaintiff to recover of said defendant the sum of one thousand
dollars, to be paid into the treasury of the United States.
under which the laborer came to this case within the terms of the statute as
country. U. S. v. Gay, 80 Fed. Rep. construed by the supreme court. U.S.
254. -v. Gay, 80 Fed. Rep. 254.
1. Manual Labor or Service. It is set- 2. Averment of Actual Immigration.
tied that the statute must be considered The declaration is 'fatally defective if it
as limited to cases where the assisted fails to allege that the foreign laborer
immigrant was brought into this coun- did actually emigrate to this country,
try under a contract to perform "man- U. S. v. Borneman, 41 Fed. Rep. 751;
ual labor or service." U. S. v. Laws, U. S. v. Craig, 28 Fed. Rep. 795.
163 U. S. 258; Holy Trinity Church v. 3. Defendant's Knowledge of Contract.
U. S., 143 U. S. 457, re-versing 36 Fed. The declaration is fatally defective if it
Rep. 303. And a declaration is in- fails to allege that the defendant, when
sufficient which does not state the he assisted the foreign laborer to emi-
character of the labor or service which grate, knew that he was under con-
the immigrant was under contract to tract. U. S. v. Borneman, 41 Fed. Rep.
perform, and hence fails to bring the 751; U. S. v. Craig, 28 Fed. Rep. 795.
422 Volume 5.
6316. CONTRACT LABOR LAW. 6315.
Second count: And the plaintiff says that during the month of
June, in the year i893, the defendant caused to be printed and pub-
lished in a foreign country, to wit, in England, 'in a newspaper called
the Sheffield Telegraph, published in the city of Sheffield, in said
England, an advertisement containing a promise or offer of employ-
ment substantially in the terms * following, to wit, that a competent
vlacksmith could obtain employment as a blacksmith 2 4n the city of
Salem, in the United States of America and commonwealth of Massa-
chusetts, at good wages, and requesting any person who was a black-
smith and who desired to obtain said opportunity of employment in
said Salem to call upon one Richard Toon, at 216 Fitzwilliam street, in
said Sheffield, to obtain from said Toon further particulars relative
to said offer of employment at said Salem.
And the plaintiff further says that one William Henry Bownes saw
said advertisement in said Sheffield Telegraph during said month of
June, and in consequence of said advertisement did thereafter, to
wit, during the month of August in said year \W3, migrate 3 and
come to the United States, to wit, to said Salem, and did then and
there perform work and labor for said defendant in pursuance of
said defendant's offer, solicitation and inducement contained in said
advertisement.
And the plaintiff further says that by the printing and publishing of
said advertisement as aforesaid, the defendant did knowingly encour-
age and solicit the said Bownes to migrate and come into said United
States, there to perform labor.
And the plaintiff further says that the defendant, after the printing
and publishing of said advertisement as aforesaid, and after the read-
ing of said advertisement by Bownes as aforesaid, did prepay the
transportation of said Bownes from said England to said United
States, said Bownes being at the time of said prepayment of his said
transportation an alien under contract to perform work and labor in
said United States, all of which the defendant at the time of his said
prepaying of said transportation well knew. 4
And the plaintiff further says that at the time of the printing and
publication of the said advertisement and at the time of said encour-
agement and solicitation and at the time of said prepayment of said
Bownes' s transportation, he, said Bournes, was an alien and a foreigner, 5
whose migration and coming into said United States under contract
as aforesaid it was unlawful for the defendant to assist and encourage
as aforesaid.
Whereby and by force of the statute in such cases made and pro-
vided, said defendant has forfeited to the plaintiff the sum of one
thousand dollars, and by force of said statute an action has accrued
to the plaintiff to recover of said defendant the sum of one thousand
dollars, to be paid into the treasury of the United States.
And the plaintiff further says that the two counts of said declara-
tion are for one and the same cause of action.
By its Assistant Attorney,
W. G. Thompson.
1. See supra, note 5, p. 421. 4. See supra, note 3, p. 422.
2. See supra, note i, p. 422. 5. See supra, note 4, p. 421.
3. See supra, note 2, p. 422.
423 Volume 5.
6317. CONTRACT LABOR LAW. 6317.
II. CRIMINAL PROSECUTIONS
Form No. 6317."
In the District Court of the United States of America for the District
of Massachusetts.
Of the October Term in the year of
our Lord one thousand eight
hundred and ninety-seven.
United States of America, ) g
District of Massachusetts. \
The grand jurors of the United States of America, chosen, selected
and sworn in and for the district of Massachusetts, in the name and by
the authority of the said United States, upon their oaths present that
John Doe, late si Boston, in the said district, on \hzfourth day of
September, in the year of our Lord one thousand eight hundred and
ninety-seven, within the district aforesaid, was the master of the
steamship " Columbia," a vessel plying between the port of Boston, in
said district, and the city of Liverpool, in England, and on said fourth
day of September, in the year aforesaid, did knowingly, wilfully and
unlawfully land and permit to be landed from said Liverpool at the
city of Boston aforesaid, one Richard Roe, an alien laborer, mechanic
and artisan, to wit, a blacksmith, he, the said Richard Roe, previous to
his embarkation on the said steamship " Columbia" to wit, on the
fifteenth day of August in the year aforesaid, having entered into a
contract and agreement with one Leonard A. Ford, a citizen of the city
of Boston, in the district aforesaid, whereby it was agreed that the
said Richard Roe would migrate and come to the city of Boston afore-
said, and there perform manual work and labor, to wit, the work of a
blacksmith, in said city of Boston for said Leonard A. Ford, and that
said Leonard A. Ford would pay him, the said Richard Roe, for such
services, the sum of twelve dollars per week, and would also prepay
the transportation and passage money of the said Richard Roe
from Liverpool aforesaid to said city of Boston, he the said John Doe,
then and there knowing of the existence of the said contract, against
the peace and dignity of the said United States, and contrary to the
form of the statute of the same in such case made and provided.
Daniel Webster, United States Attorney.
1. For the requisites of an indict- 2. United States. 23 Stat. at Large,
ment, generally, consult the title IN- p. 332, c. 164, 4; Rev. Stat. (Supp.
DICTMENTS. 1891), p. 479, C. 164, 4.
424 Volume 5.
CONTRACTS.
See the titles ARBITRATION AND AWARD, vol. 2, p. 33;
ASSUMPSIT,vo\. 2, p. 294; ATTORNEYS, vol. 2, p. 969;
AUCTIONEERS, vol. 2, p. 1067; BASTARDY, vol. 3, p.
153; BILLS AND NOTES, vol. 3, p. 260; BONDS AND
UNDERTAKINGS, vol. 3, p. 526; BONDS AND UN-
DERTAKINGS (ACTIONS ON\ vol. 3, p. 528; BOOK
DEBT, vol. 3, p. 1018; BREACH OF PROMISE OF MAR-
RIAGE, vol. 3, p. 1051; BROKERS, vol. 4, p. 90; BUILD-
ERS AND ARCHITECTS, vol. 4, p. 121 ; CARRIERS, vol.
4, p. 192; CATTLE AND DOMESTIC ANIMALS, vol.
4, p. 376; CHARTER-PARTIES, vol. 4, p. 759; COMPRO-
MISE; CONTRACTS OF HIRE; CONTRIBUTION;
CORPORA TIONS; CO VENA NTS; DEB T; DENTIS TS;
DRUGGISTS; EXECUTORS AND ADMINISTRA-
TORS; GOODS SOLD AND DELIVERED; GOOD-
WILL; LANDLORD AND TENANT; MASTER AND
SERVANT; MONEY HAD AND RECEIVED; MONEY
LENT; MONEY PAID; PARTNERSHIP; PRINCI-
PAL AND AGENT; PRINCIPAL AND SURETY;
SALES; WORK AND LABOR; also the GENERAL IN-
DEX to this work.
CONTRACTS OF HIRE.
BY W. R. BUCKMINSTER.
I. ACTIONS Ex CONTRACTU, 426.
i. By Bailor, 426.
a. For Hire, 426.
b. For Failure to Return Chattel, 427.
c. For Misuse of Chattel, 428.
a. By Bailee for Defect in Chattel Let, 430.
II. ACTIONS EX DELICTO, 431,
i. By Bailor for Improper Use of Chattel, 431.
a. By Bailee for Damages Due to Defect in Chattel Let, 432.
CROSS-REFERENCE.
For matters of Substantive Law, see the title CONTRACTS OF HIRE
(LA W OF BAILMENTS}, 7 AMERICAN AND ENGLISH EN-
CYCLOPAEDIA OF LAW (2d ed.), p. 299.
425 Volume 5.
6318. CONTRACTS OF HIRE. 6319.
I. ACTIONS Ex coNTRAciu. 1
1. By Bailor.
a. FOP Hire.
Form No. 6318.
(2 Chit. PI. 55.)
In the Common Pleas.
Saturday next after the Morrow of All Souls
in Michaelmas Term, 1 Wm. IV.
Middlesex, to wit. Richard Roe was attached to answer John Doe
of a plea of trespass on the case upon promises, and thereupon the
saidy<?/z# Doe, by Jeremiah Mason, his attorney, complains. For
that whereas the said Richard Roe heretofore, to wit, on the first day
of January, in the year of our Lord i8$0, in the county of Middlesex
aforesaid,* was indebted to the said John Doe in the sum of 20 for
the use and hire of divers horses, mares, and geldings, bridles,
saddles, and harness, and of divers chaises and other carriages, by
the said John Doe before that time let to hire and delivered to the
said Richard Roe, and at his special instance and request, and by
the said Richard Roe, under and by virtue of that letting to hire
before then, had and used. And being so indebted, he, the said
Richard Roe, in consideration thereof, afterwards, to wit, on the day
and year last aforesaid, in the county of Middlesex aforesaid, under-
took, and then and there faithfully promised the said John Doe to
pay him the said last mentioned sum of money, when he, the said
Richard Roe, should be thereunto afterwards requested. Neverthe-
less, the said Richard Roe, not regarding his said promise and under-
taking, but contriving and fraudulently intending craftily and subtly
to deceive and defraud the said John Doe in this behalf, hath not as
yet paid the said sum of 20, or any part thereof, to the said John Doe,
although often requested so to do, but the said Richard Roe to pay
him the same hath hitherto wholly neglected and refused, and still
doth neglect and refuse, to the damage of the said John Doe of 5,
and, therefore he brings his suit, etc.
( John Den
Pledges to Prosecute \ and
( Richard Fen.
Form No. 6319.
(Md. Pub. Gen. Laws (1888), art. 75, 23.)*
John Doe )
against >- In the Circuit Court of Baltimore City.
Richard Roe. )
John Doe, by Jeremiah Mason, his attorney, sues Richard Roe for *
the hire of certain household furniture, linen and other necessaries
1. For the formal parts of a declara- parts of complaints or petitions consult
tion in a particular jurisdiction consult the title COMPLAINTS, vol. 4, p. 1019.
the title DECLARATIONS. For the formal 2. The same form is set out in Fla.
Rev. Stat. (1892), 1058.
426 Volume 5.
6820. CONTRACTS OF HIRE. 6322.
by the plaintiff let to hire to the defendant, and the plaintiff claims
therefor the sum of two hundred dollars.
Jeremiah Mason, Plaintiff's Attorney.
Form No. 6320.
(Mass. Pub. Stat. (1892), c. 167, 94.)
John Doe \ Middlesex Sup . Ct
RichlrdRoe. JPiaintiffi Declaration.
And the plaintiff says the defendant owes him one hundred dollars
for the use of a certain horse and carriage hired of the plaintiff by
the defendant.
Jeremiah Mason, Attorney for Plaintiff.
Form No. 6321.
J kn f lin^ intiff| i In the Di$trict C Urt f
Richard Roe, defendant. ) Custer Count y' Nebraska -
The plaintiff for cause of action herein alleges, and shows to the
court that on the first day of May, iS96, the defendant hired from
the plaintiff five mowing machines, the property of the plaintiff, for
the space of two months then next ensuing, for the use of which he
promised to pay to plaintiff the sum of thirty dollars per month,
amounting in the whole to the sum of three hundred dollars, which
sum became due on the first day of July, i&96, but no part of the
same has been paid.
Wherefore plaintiff demands judgment against defendant for said
sum of three hundred dollars, and the costs and disbursements of
this action
Jeremiah Mason, Plaintiff's Attorney.
b. For Failure to Return Chattel.
Form No. 6322.
(Precedent in Field v. Brackett, 56 Me. I2i.) 1
[(Commencement.}] 2 For that the said defendants, at Lewiston, to
wit, at said Auburn, on the eighteenth day of June, in the year of our
Lord one thousand eight hundred and sixty-seven, had and received
1. The defendant admitted the agree- as matter of law that plaintiff was enti-
ment set out in the declaration and al- tied to recover, to which ruling defend-
leged that the wagon was stolen during ants excepted, and their exceptions
the month for which it was hired while were sustained, the court holding that
defendants were in the exercise of or- a promise to "return in good order"
dinary and proper care, and that they does not make the bailee an insurer
had never been able to find and recover against all casualties and contingencies
the wagon. Whereupon the question whatsoever. No special obligation is
was submitted to the presiding judge, incurred beyond that which the law
with the right to except, whether as implies in the ordinary transaction of
matter of law the plaintiff was entitled letting a vehicle for hire,
to recover. The presiding judge ruled 2. See note I, p. 428.
427 Volume 5.
6323. CONTRACTS OF HIRE. 6325.
of the plaintiff the plaintiff's single wagon, of the value of one hun-
dred ana fifty dollars, the same to be kept and used by the said de-
fendants for the period of one month from the said eighteenth day of
June aforesaid and the said defendants, in consideration that the
plaintiff would so let to them, the said defendants, said wagon as afore-
said, then and there promised the plaintiff to return the said wagon
to him at the expiration of the month aforesaid in good order; yet
the said defendants, not regarding their promise aforesaid, did not
return the said wagon according to their promise, but though the
month has long since elapsed, and though often thereto requested,
the said defendants have neglected and refused and still neglect and
refuse so to do. \(Conclusion^-
Form No. 6323.
Supreme Court, Suffolk County.
John Doe, plaintiff,
against
Richard Roe, defendant.
The complaint of the above named plaintiff respectfully shows to
the court, that on the first day of January, \W6, the defendant hired
from the plaintiff one Steinway baby-grand piano, of the value of seven
hundred dollars, to be used by the defendant from ti\z first day of
January, iS96, to the first day of July, \W6, and that defendant agreed
to take due care of said piano, and to return the same to plaintiff
at the expiration of said term in good condition, reasonable wear
excepted. That the term for which said piano was hired has elapsed,
and that defendant has not returned the same, although on the third
day of July, iS96, he was by plaintiff requested so to do.
Wherefore plaintiff demands judgment against the said defendant
for the sum of seven hundred dollars, with interest from the second day
of July, iS96, and all costs and expenses of this action.
Jeremiah Mason, Plaintiff's Attorney.
Form No. 6324.
(Tenn. Code (1896), 4660.)
John Doe } The plaintiff sues the defendant for the following
v. > horses, the property of the plaintiff (or other personal
Richard Roe. ) property, describing it succinctly^) with the value of the
hire or use thereof, during the detention, viz. : from the tenth day of
August, 1 896, to the first day of September, i896.
Jeremiah Mason, Attorney for the Plaintiff.
e. For Misuse of Chattel.
Form No. 6325.
(2 Chit. PI. 146.)'
{Commencing as in Form No. 6318, and continuing down to *) in con-
1. For the commencement and con- 2. See also substance of a similar
elusion of the declaration in Maine declaration in Frye v. Burdick, 67 Me.
consult the title DECLARATIONS. 408.
428 Volume 5.
6326. CONTRACTS OF HIRE. 6326.
sideration that the said John Doe, at the special instance and request
of the said Richard Roe, had let to hire and delivered to the said Rich-
ard Roe a certain horse of the said John Doe of great value, to wit, of
the value of 20, to be ridden and used by the said Richard Roe, he
the said Richard Roe undertook, and then and there faithfully prom-
ised the said John Doe, to ride and use the said horse in a moderate,
careful and proper manner. And although the said Richard Roe then
and there had and received the said horse of and from the said John
Doe for the purpose aforesaid; yet the said Richard Roe, not regarding
his said promise and undertaking, but contriving and intending to
injure the said John Doe in this behalf, did not nor would ride or use
the said horse in a moderate, careful or proper manner, but wholly
neglected and refused so to do. And on the contrary thereof he the
said Richard Roe, after the making of his said promise and undertaking,
to wit, on the day and year aforesaid, at Middlesex aforesaid, so care-
lessly and improperly rode and used the said horse, that by means
thereof the said horse became and was greatly lamed and hurt, and so
remained and continued for along space of time, to wit, hitherto, dur-
ing all which time he the said John Doe thereby lost and was deprived
of the use and benefit of the said horse, and also thereby the said
horse, being of the value aforesaid, became and was greatly damaged,
lessened in value, and spoiled, to wit, at Middlesex aforesaid.
Wherefore the said John Doe saith that he is injured and hath sus-
tained damage in the amount of 15, and therefore (concluding as in
form No. 6318}.
Form No. 6326.
In the Superior Court of the City and County of San Francisco, State
of California.
John Doe, plaintiff, )
against V Complaint Breach of Contract of Hire.
Richard Roe, defendant. )
John Doe, the plaintiff in the above entitled action, complaining of
Richard Roe, the defendant in said action, alleges:
I. That on the first day of January, iS96, the defendant hired from
the plaintiff one Miller upright piano to be used by the defendant
from the said first day of January, iS96, to \hzfirst day of January,
1 897.
II. That defendant promised to take due care of said piano and to
return the same to plaintiff at the expiration of said term in good
condition, reasonable wear excepted.
III. That the said term for which the said piano was hired has
expired.
IV. That defendant so negligently and improperly cared for said
piano that the same was wholly lost to plaintiff.
V. That the said piano was of the reasonable value of five hundred
dollars.
Wherefore plaintiff prays judgment against the defendant for the
said sum of five hundred dollars, and costs of suit.
Jeremiah Mason, Attorney for Plaintiff.
429 Volume 5.
6327. CONTRACTS OF HIRE. 6328.
2. By Bailee for Defect in Chattel Let.
Form No. 6327.
(2 Wentw. PI. 155.)
Markham and Le Blanc.
Trin. Term, 7 Geo. II.
Middlesex, ss. William Fletcher complains of Daniel Dean, in the
custody of the marshal of the marshalsea of our lord the now king
before the king himself of a plea of trespass on the case upon prom-
ises; for that whereas the said William, at the special instance and
request of the said Daniel, on the third day of October in the year of
our Lord 1732, at the parish of St. Botolph without Aldgate, in the said
county, hired of the said Daniel one gelding, for a journey with him
the said William, f rom thence to Chester, in the county of Chester, and
from Chester aforesaid back to the parish aforesaid, for a certain price
or hire, to wit, for the price of one hundred shillings of lawful money
of Great Britain, he the said Daniel assumed upon himself and under-
took that the said gelding was fit and able to perform the said journey;
and although the said William afterwards, to wit, on the said third
day of October, set forward on his said journey to Chester on the said
gelding so hired as aforesaid; yet, notwithstanding the assumption
and undertaking of the said Daniel as aforesaid, the said gelding was
not fit and able to perform the said journey, but tired on the road in
the said journey, and became entirely unfit and unable to perform the
residue of the said journey; by reason of which he the said William
was put unto and sustained great expenses in and about providing
himself with horses for the residue of the said journey, to the damage
of the said William of nine pounds nineteen shillings, and therefore he
brings suit, etc.
Form No. 6328.
(Precedent in Windle v. Jordan, 75 Me. 149.)
[(Commencement.)] 1 In a plea of the case, for that the said defend-
ant, at said Lisbon, on the second day of September, in the year of our
Lord one thousand eight hundred and seventy-nine, in consideration
that the plaintiff at the special instance and request of the defend-
ant, had hired of him one horse and wagon for the purpose of riding
from Lisbon, aforesaid, to Lewiston in said county, and in return from
said Lewiston to said Lisbon, for the price and hire of a reasonable sum
of money, to wit: two dollars, and for other good and valuable con-
siderations, then and there promised the plaintiff that the said horse
was sound, kind, safe, and serviceable, and free from the vice of kick-
ing, and that the same would perform well when harnessed in said
wagon, and was suitable to perform said purpose and service.
And the plaintiff in fact saith, that he, confiding in said promise of
the said defendant, did, on the second day of September, aforesaid, set
forward on said purpose and service with said wagon, drawn by said
horse of the defendant, hired for the purpose aforesaid, as aforesaid.
1. For the commencement and conclusion of a declaration in Maine consult
the title DECLARATIONS.
480 Volume 5.
6329. CONTRACTS OF HIRE. 6329.
Yet the said defendant did not regard his promise, aforesaid, but
then and there craftily and subtly deceived the plaintiff in this, that
the said horse was then and there unkind, unsafe, unsound, and
unsuitable for said purpose and service, and that said horse was not
free from the vice of kicking, but on the contrary said horse was then
there in the habit of viciously and violently kicking, all of which the
said defendant then and there well knew.
And the plaintiff avers that, in the performance of said service,
the said horse was driven and managed by the plaintiff with due care.
Yet, by reason of the said unkindness, unsoundness and unsuitable-
ness of the said horse for said purpose and service, the said horse
then and there became restive, violent, furious, and uncontrollable,
and then and there, while in said service, to wit: at said Lewiston,
the said horse viciously and violently kicked the plaintiff upon his
left knee and broke the knee-cap thereof, and then and there kicked
the plaintiff upon his right leg and upon his thumb and finger, all
without the fault of the plaintiff, and the plaintiff was thereby then
and there greatly and permanently injured in his left knee, right leg
and thumb and finger, and by reason of his said wounds and injuries,
then and there received, as aforesaid, the plaintiff then and there, for
a long time afterwards, suffered great pain and anxiety, and became
sick, sore, lame, disordered, and incapable of transacting his ordi-
nary and necessary labor, affairs, and business; and so continued for
a long space of time, to wit: ever since.
And the plaintiff avers that his said injuries are incurable, that by
reason of said wounds, injuries, and bruises so received, as aforesaid,
he was obliged to expend, and did expend large sums of money, to
wit : three hundred dollars, in endeavoring to be cured of said wounds
and injuries, occasioned as aforesaid, and for board, nursing, medi-
cine, and attendance. \(Conclusion^-
II. ACTIONS Ex DELicio. 2
1. By Bailor for Improper Use of Chattel.
Form No. 6329.
(Md. Pubr. Gen. Laws (1888), art. 75, 23.)
(Commencing as in Form No. 6319, and continuing down to *) that
the defendant hired from the plaintiff a horse to ride from Frederick
to Hagerstown, and thence back to Frederick, in a proper manner;
and the defendant rode said horse so immoderately that he became
lame and injured in value. And the plaintiff claims (concluding as in
Form No. 6319).
1. For the commencement and con- suit the title DECLARATIONS. For the
elusion of a declaration in Maine con- formal parts of complaints or peti-
sult the title DECLARATIONS. tions consult the title COMPLAINTS,
2. For the formal parts of a declara- vol. 4, p. 1019.
tion in a particular jurisdiction con-
431 Volume 5.
6330. CONTRACTS OF HIRE. 6331.
Form No. 6330.
(Precedent in Spooner v. Manchester, 133 Mass. 270.)'
[(Caption as in Form No. 6320.}]*
And the plaintiff says the defendant hired the plaintiff's horse
and carriage to drive from Worcester to Clinton and back in a prudent,
careful and proper manner, and that the defendant drove the same
beyond Clinton to Northborough wrongfully, and managed and drove
said horse so improperly, unskilfully and wrongfully while at said
Northborough that said horse's ankle was broken and otherwise
injured, to the great damage of the plaintiff.
[(Signature as in Form No. 6320.*)}*
2. By Bailee for Damages Due to Defect in Chattel Let.
Form No. 6331.*
Suffolk,*,*,. Superior Court. April term, 1 875.
Home et al. }
vs. > Plaintiffs' Declaration.
Meakin et al. )
And the plaintiffs say that the defendants are livery-stable keepers
and accustomed to let horses and carryalls for hire, and the plaintiff,
James W. Home, hired 4 of the defendants a horse and carryall to
attend the funeral of a brother-in-law and take with him his wife and
family, for a certain sum to be paid by him to the defendant for the
use of such horse and carryall. And the defendants were bound and
agreed 6 to furnish the plaintiff with a suitable and proper horse and
carryall to attend such funeral. Yet the defendants, neglecting their
said obligation and duty, did not furnish the plaintiffs with a suitable
and proper horse or suitable and proper carryall to attend such
funeral, but on the contrary furnished them with a horse and carryall
both of which were unsuitable and improper, 6 the horse being unkind,
vicious, and unsafe, and the carryall frail and unsafe, whereby, while
the plaintiffs were riding in said carryall in attending said funeral, and
the said James W. was driving and exercising due care, said horse
suddenly started and ran and kicked, one of the wheels of the carryall
broke down, and the female plaintiff was thrown out and bruised and
injured internally and subjected to great pain and suffering.
S. J. Thomas, Attorney for Plaintiff.
1. This declaration is sufficient in the contract was made by the father
form, but it appeared in evidence that for his son James W., and if the de-
the defendant unintentionally took the fendants knew the purpose for which
wrong road in returning to Worcester, the horse was to be used by the son.
and having traveled on such road a Home v. Meakin, 115 Mass. 326.
few miles discovered his mistake and 5. In letting a horse for hire, there is
took what he considered the best way an obligation and implied agreement
back to the place of hiring; and it was on the part of the letter to furnish a
held that he was not liable in trover horse that is suitable for the purpose
for the conversion of the horse. for which it is hired. Home v. Mea-
2. The matter to be supplied within kin 115 Mass 326.
[] will not be found in the reported case. 6. It is not necessary for the plain-
3. This form is the declaration as tiffs to allege that the defendants knew
drawn in conformity with instructions that the horse was unsuitable. The
of the court in Home v. Meakin, 115 fact that the defendants did not know
Mass. 326. It is copied from the record, that the horse was unsuitable would
4. This allegation is sufficient if (as not furnish them any defense. Home
the jury found in the present case) v. Meakin, 115 Mass. 326.
433 Volume 5.
CONTRIBUTION.
BY R. G. DODGE.
I. BETWEEN CO-DEBTORS IN GENERAL, 433.
II. BETWEEN CO-SURETIES, 441-
1. In General, 441.
2. Where Some Co-sureties are Insolvent, 446.
3. Where Contribution is Sought from Estate of Deceased Co-
surety, 447-
III. BETWEEN PARTNERS, 448.
IV. BETWEEN STOCKHOLDERS, 449.
V. BETWEEN JOINT OWNERS OF PROPERTY, 450.
i. Where Plaintiff has Repaired Property, 450.
. Where Plaintiff has Removed an Incumbrance from Property,
453-
VI. BETWEEN CO-DEVISEES AND CO-LEGATEES, 455.
VII. BETWEEN JOINT TORT-FEASORS, 456.
CROSS-REFERENCES.
For Forms relating to General Average, see the title GENERAL
AVERAGE.
For matters of Substantive Law, see the title CONTRIBUTION
AND EXONERA TION, 7 AMERICAN AND ENGLISH ENCY-
CLOPAEDIA OF LAW (ad ed.), p. 325.
I. BETWEEN CO-DEBTORS IN GENERAL.
Form No. 6332.
(Conn. Prac. Act, p. 65, No. 92.)
To the sheriff of the county of Hartford, his deputy, or either con-
stable of the town of Hartford in said county Greeting:
By authority of the State of Connecticut, you are hereby com-
manded to attach, to the value of fourteen hundred dollars, the goods
1. For the formal parts of a declara- California. Civ. Code (1897), 1432;
tion, complaint, petition or bill in equity Code Civ. Proc. (1897), 709.
in a particular jurisdiction consult the Delaware. Rev. Stat. (1893), p. 533,
titles DECLARATIONS ; COMPLAINTS, vol. 2.
4, p. 1019; BILLS IN EQUITY, vol. 3, p. Georgia. 2 Code (1895), 3991.
417. Kentucky. Barb. & C. Stat. (1894),
For statutes relating to ihe right of 484-488, 4665-4667.
contribution between joint debtors see Michigan. How. Anno. Stat. (1882),
as follows: 5906,6122,6154-6159.
5 E. of F. P. - 28. 433 Volume 5.
6333. CONTRIBUTION. 6333.
or estate of Richard Roc, of Windsor, in said county, and him sum-
mon to appear before the Superior Court to be held at Hartford, in
and for the county of Hartford, on the first Monday of February,
i860, then and there to answer unto John Doe, of said Hartford, in a
civil action, wherein the plaintiff complains and says:*
1. On May 1st, i879, the plaintiff and defendant made and deliv-
ered to Henry Rogers their promissory note, of which a copy is
hereto annexed, marked Exhibit^.
2. At the maturity of said note, the plaintiff was compelled to pay
and did pay all of said note. 1
3. The defendant was and is bound to pay 1,000 to the plaintiff,
as his contributive share thereof.
4. On November 1st, i879, the plaintiff demanded of the defendant
said sum, or contributive share of 1,000, which he refused to pay,
and no part thereof has been repaid to the plaintiff.
The plaintiff claims 1,200 damages.
[Samuel Short of Hartford is recognized in $ to prosecute,
etc.]
Of this writ, with your doings thereon, make due return.
Dated at Hartford, this fifteenth day of January, i880.
Abraham Kent, Justice of the Peace.
Form No. 6333.
(Precedent in Security F. & M. Ins. Co. v. St. Paul Ins. Co., 50 Conn. 234. )*
[(Commencing as in Form No. 6332, and continuing down ta*.)] 3
i. Prior to the 24th of April, i874, the defendant with the plain-
tiff and other insurance corporations, had severally issued policies of
fire insurance to Messrs. Taylor, Randall & Co. , of Boston, Massa-
chusetts, upon property on Central Wharf, in said Boston, the policies
of the defendant and plaintiff being each for the sum of twenty-five
Minnesota. Stat. (1894), 5479. Smith, 70 N. Y. 537. And an allega-
Montana. Civ. Code (1895), 1942. tion that judgment has been recovered
New York. Birds. Rev. Stat. (1896), against the plaintiff is insufficient.
p. 1156, 922 et seq. Huey v. Stewart, 69 Ga. 768.
North Dakota. Rev. Codes (1895), Payment Compulsory. It must further
3767. be alleged that the payment by the
Oregon. Hill's Anno. Laws (1892), plaintiff was compulsory, for a volun-
298. tary payment gives rise to no right of
Pennsylvania. Bright. Pur. Dig. contribution. Bradley v. Burwell, 3
(1894), p. 1095, ii. Den. (N. Y.) 61; Webster's Appeal, 86
Washington. Ballinger's Anno. Pa. St. 409; Aldrich v. Aldrich, 56 Vt.
Codes & Stat. (1897), 5294. 324; Watson v. Wilcox, 39 Wis. 643.
1. Allegation of Payment Generally. As to the effect of payment to avoid
There must be an allegation in the bill levy of execution after judgment see
or complaint, etc., to the effect that the infra, note 3, p. 441.
plaintiff has made some payment of 2. This case was reserved, upon de-
money, for no right to contribution murrer, for the advice of the supreme
arises until some payment has been court, which advised the superior court
made. Taylor v. Means, 73 Ala. 468; that the complaint was sufficient.
Smith v. State, 46 Md. 617; Phillips v. 3. The matter to be supplied within
Blatchford, 137 Mass. 510; Van Petten [ ] will not be found in the reported
v. Richardson, 68 Mo. 379; Morgan v. case.
434 Volume 5.
6333. CONTRIBUTION. 6333.
hundred dollars, and, prior to said date, said insured property had
been destroyed by fire, and, on said date, claims were being made
by the insured on said policies against the defendant and plaintiff and
said other insurance corporations.
2. Prior to said April 24, J 87^, the plaintiff and defendant,
together with the German Insurance Company, of Erie, Pennsylvania,
which had a policy of insurance on said property of $5,000, and the
Mississippi Valley Insurance Company, of Memphis, Tennessee, which had
a policy of insurance on said property of $5,000, the Mechanics and
Traders Insurance Company, of New York City, the Kings County Fire
Insurance Company, of New York, the Franklin Insurance Company, of
Indianapolis, Indiana, the Franklin Insurance ompany, of Wheeling,
West Virginia, the Lafayette Fire Insurance Company, of New York
City, the Adriatic Fire Insurance Company, of New York City, the
Oswego <5r* Onondaga Insurance Company, of Baldwinsville, in the state
of New York, the Ben Franklin Insurance Company, of Allegheny, Penn-
sylvania, the Hibernia Mutual Fire Insurance Company, of Newark,
New Jersey, the Globe Insurance Company, of Chicago, Illinois, and the
Clay Fire Insurance Company, of Louisville, Kentucky, all of which said
companies had severally policies on said insured property, each of
1,500, had determined that the claims made on said policies by the
insured were fradulent and invalid, and on said last mentioned date
the plaintiff and defendant and said other insurance corporations
mentioned in this article, entered into and signed the following
written agreement with each other: {Here was inserted a copy of the
agreement.}*-
1. The agreement set out was in the the companies subscribing to the agree-
words and figures following: " In re ment; the management and conduct of
Taylor, Randall & Co. vs. St. Paul Fire said resistance to said claims and de-
Sr* Marine Ins. Co. et ah. The under- fense of said suits and proceedings
signed insurance companies having shall be and is fully entrusted to and
policies outstanding, issued to Taylor, devolved upon a committee to be com-
Randall &" Co., upon property on Cen- posed of IV. H. Brazier, of the city of
tral Wharf, Boston, upon which claims New York, Charles W. Sproat, of the
have been made against said com- city of Boston, James J?. Lott, of the city
panics, do, in consideration of one dol- of New York, and L. S. Jordan, of the
lar by each paid to the other, and city of Boston; which committee shall
divers other good and valuable consid- have full power and authority to employ
erations, mutually covenant and agree counsel and attorneys to appear for
to and with each other as follows, that said companies and each thereof .and
is to say, the said companies will unite defend said suits and legal proceedings,
in resisting the claim made upon said and to employ other persons for other
policies, and on each thereof, and in the services relative thereto, and to assess
defense of any and all suits and legal upon and demand and receive from
proceedings that have been or may be such companies from time to tim;.
instituted against any of said compa- as such committee shall deem proper,
nies upon any of said policies, and will, such sum or sums of money, for the
when and as required by the committee compensation of such counsel and at-
hereinafter mentioned, contribute to torneys, and such other persons, and
and pay the costs, fees and expenses all other expenses of such defense of
of said suits and procedings pro rata, said suits, as said committee shall deem
that is to say, each company shall pay necessary and expedient; such assess-
such proportion of said costs, fees and ment upon and payment by each of
expenses as the amount insured by said companies to be pro rata as above
said company shall bear to the whole mentioned. Each and every of said
amount insured on said property by all companies shall fully and faithfully
435 Volume 5.
6333. CONTRIBUTION. 6333.
3. At tne time of the execution of said agreement suits were pend-
ing in Massachusetts against the Franklin Insurance Company, of Indian-
apolis, and the Clay Insurance Company, of Kentucky, and the defendant,
and the caption of said agreement refers to such suits.
4. Mr. Edward T. Woodward, of said Boston, was duly employed,
under said agreement, on behalf of the subscribers thereto, to assist
in the defense of said suits as an expert on sundry matters therein
involved and for other purposes, and in pursuance of such employ-
ment the said Woodward rendered great and valuable services in the
defense of said suits.
5. After long and exhaustive trials the plaintiffs in those suits were
beaten on the merits of the controversy, and it was established as the
results of said suits that the plaintiffs therein would not be able to
enforce their claims against the subscribers to said agreement.
6. At the close of said suits said Woodward presented to the com-
mittee mentioned in said agreement a bill for his services, amounting
to the sum of 5,000, which bill was approved by said committee and
was reasonable, and was so adjudged by the United States Circuit
Court as below stated.
7. In a reasonable time thereafter said committee levied an assess-
ment upon the companies who were parties to said agreement, to
pay the bill of said Woodward and other expenses incurred in said
suits, but no company paid its assessment; each of said companies,
including the defendant, alleging the bill to be unreasonable in
amount.
8. In the year i87# said Woodward sued this plaintiff in said Boston,
to recover for his said services, and thereafter such proceedings
were had as that in the United States Circuit Court for the First Cir-
cuit, held in Boston, in January, iS80, said Woodward recovered
judgment against this plaintiff for the value of his services so ren-
dered as aforesaid, to the amount of 5,000 and interest thereon, the
whole of said judgment being about the sum of 5,444-08- Each of
said defendants knew of the existence of said suit, and during its
progress claimed that said bill was unreasonable in amount.
9. On an execution issued on said judgment, this plaintiff, on
March 26, iS81, paid the whole amount thereof, which with interest
was the sum last above stated, and this plaintiff was further sub-
jected to the payment of the additional sum of 943, being for
expenses and legal services incidental to the trial of said cause. 1
10. Since the signing of said agreement, and before March 26,
i&81, the said German Insurance Company, the Hibernian Mutual Fire
Insurance Company, and the said Globe Insurance. Company, represent-
adhere to this agreement, and shall re- and conduct of such resistance and de-
frain from any act or proceedings in fense, as may be in the possession or
reference to such claims or suit or the power of said companies respectively
defense thereof that can or may in any- and as may be desired by said commit-
wise defeat, obstruct or interfere with tee. In witness whereof, the said in-
the acts or proceedings of said commit- surance companies have subscribed
tee relative thereto, and shall at all this agreement, the 24th day of April,
times furnish to said committee any 187^."
and all papers, information and assist- 1. See supra, note I, p. 434.
ance in and about such management
436 Volume 5.
6334. CONTRIBUTION. 6334.
ing in all $10,000 of the insurance on said property, had utterly
failed and there were in existence no assets of said companies or of
either of them; and the said Oswego & Onondaga Insurance Company
had been dissolved under the laws of the state of New York and could
not be sued in law or equity in that state and is not within the juris-
diction of this court.
11. On or about May 23, i881, the plaintiff made demand upon
all the remaining signers to said agreement, including the defendant,
that they should contribute according to the amount of their several
policies to reimburse the plaintiff what would be legally and equi-
tably due on the facts aforesaid.
12. Some companies, other than the defendant and other than said
insolvent companies, have responded to the demand of the plaintiff,
so that there remains unpaid of the sum of 5,444-08, the principal
sum of $2,252.52, and of the sum of $943, the principal sum of $400,
but the defendant has refused to pay to the plaintiff any sum whatever.
13. All the other signers to said agreement, except the defendant,
are without the jurisdiction of this court.
The plaintiff claims equitable relief, and that there be an account-
ing between the plaintiff and the defendant, and that of the sums
paid by the plaintiff as aforesaid, and remaining unpaid, the defend-
ant be decreed and ordered to pay the plaintiff one-half thereof, to
wit: the sum of $1,750; and such other relief as shall be equitable in
the premises. [(Concluding as in Form No. 6332)J\ l
Form No. 6334.'
In the Cook County Circuit Court.
February Term, iS9S.
State of Illinois, )
County of Cook. \ ss<
John Doe, plaintiff, by Jeremiah Mason, his attorney, complains of
Richard Roe, defendant, in a plea of trespass on the case on promises:
For that whereas the said plaintiff and said defendant, jointly, as
purchasers, on \htfourth day of January, i896, entered into a written
contract, under their joint seal, with Richard Fen, of the city of Chi-
cago, in said county of Cook, as vendor for the purchase of a certain
tract of land (describing it), whereby said Doe and said Roe promised
to pay therefor the sum of eighty thousand dollars, in five monthly
instalments of sixteen thousand dollars each, on the first day of each
1. The matter to be supplied within he had "discharged" the judgment.
[ ] will not be found in the reported Under a declaration in that form, it is
case. of course necessary to introduce evi-
2. This declaration is based on the dence as to the amount which was paid
facts in the case of Harvey v. Drew, 82 in discharging the judgment, for it is
111. 606. In the form given in the text, not the amount of the judgment, but
however, it is alleged that the plaintiff the sum paid by the plaintiff, which
had been compelled to pay the entire determines the extent of the defend-
sixteen thousand dollars with costs, ant's liability.
while in the case on which the form is See also the substance of plaintiff's
based the plaintiff compromised the statement of claim in a similar case in
judgment for a smaller amount and Flanagan v. Duncan, 133 Pa. at. 373.
merely alleged in his declaration that
437 Volume 5.
6335. CONTRIBUTION. 6335.
month, beginning with the^f/^/day of February, i896. That the first
four instalments were duly paid, but that the fifth instalment, due the
first &&y of June, i896, was not paid; and that said instalment still
remaining unpaid said Richard Fen began suit therefor in the Circuit
Court of Cook county, and on the twenty-eighth day of November, i896,
recovered judgment therein against said Z>^and Roe for sixteen thou-
sand dollars, the amount of said instalment, together with one hundred
and twenty-four dollars and fifty-two cents costs. That on the thirtieth
day of November, i896, execution was duly issued upon said judgment
directed against said Doe and said Roe, to the sheriff of the county of
Cook aforesaid; that in order to prevent the levy of such execution
upon his property, said John Doe paid to the sheriff of Cook county
aforesaid the amount of said judgment, sixteen thousand one hundred
and twenty-four dollars and fifty-two cents. 1
Whereby the defendant Richard Roe, by virtue of the facts herein-
before alleged, becomes indebted and liable to pay to the plaintiff
one-half of the amount of said judgment, to wit, the sum of eight thou-
sand and sixty-two dollars and twelve cents, and being so indebted the
defendant, in consideration thereof, then and there promised the
plaintiff to pay him the said sum of money on request.
Yet the said defendant, notwithstanding his said promises, though
often requested thereunto by the plaintiff, has not paid the same or
any part thereof, but neglects and refuses wholly so to do, to the
damage of the plaintiff eighteen thousand dollars, and therefore he
brings his suit, etc.
Jeremiah Mason, Plaintiff's Attorney.
Form No. 6335.
(Precedent in Sexton v. Sexton, 35 Ind. 89.)
State of Indiana, ) In the court of George W. Beard, justice of the
Greene county. \ ss peace of Center township.
Lemuel B. Sexton )
v- \
John G. Sexton. )
LemuelB. Sexton, plaintiff, complains oi John G. Sexton, defend-
ant, and says that on the 10th day oi January, i860, the said plaintiff
and defendant, by their promissory note, a copy of which is filed
herein, 2 promised to pay to the order of Wm. Stalcup, Wm. Haltsdaw,
James G. Stalcup and Squire Graves, under the name and style of
Hance Stalcup 's heirs, the sum of two hundred and forty-seven dollars
1. See supra, note I, p. 434. appraisement, or stay laws, with in-
2. The note, a copy of which was filed terest from date.
with the complaint, was as follows: Lemuel B. Sexton.
"$247.18. John G, Sexton."
Bloom field, January roth, 1860. And it was held that in the absence
On or before the 2$th day of December, of an allegation to the contrary, it
1860, after date, we promise to pay to was to be presumed that both parties
the order of Hance Stalcup' s heirs two were principals, and the complaint was
hundred and fortv-seven dollars and therefore sufficient to entitle the plain-
eighteen cents, for value received, with- tiff to recover one-half from the dt-
out any relief whatever from valuation, fendant.
438 Volume 5.
6336. CONTRIBUTION. 6336.
and eighteen cents, with interest from date; that on the 7th day of
January, i861, said plaintiff paid on said note the sum of fifty dollars;
that on the 22d day of January, iS61, said plaintiff paid on said note
the sum of one hundred and two dollars; the 12th day of April, 1&61,
said plaintiff paid on said note the sum of twenty dollars; that on the
day of , iS61 or iS62, said plaintiff paid the remainder
of said note, principal, and interest, and that said laM payment was
never credited on said note; that said defendant John G. Sexton, has
never paid said plaintiff the one-half of said note, principal and
interest, paid by said plaintiff for said defendant on said note,
although often requested so to do; wherefore [plaintiff prays judg-
ment against said defendant for one hundred and thirty dollars, and
for other proper relief.
D. E. Williams, Attorney for Plaintiff.] 1
Form No. 6336."
To the Supreme Court.
Rockingham, ss.
James O. Walker, Randolph C. Hurd, Lawrence Huse, Arthur M.
Moody, Robert Dorral, and William Plumer, all of Exeter in said county
of Rockingham, complain of John Cheever and Henry Cheever, as execu-
tors of the will of Charles A. Cheever, deceased, both of said Exeter,
and say: That the six complainants above named, together with
Charles A. Cheever, John Knowlton, Thomas A. Tullock, and Josiah
Stevens, all also of said Exeter, on the twenty-sixth day of April, iS52,
made and delivered to the Boston and Maine Railroad Company, a cor-
poration organized and existing under the laws of the commonwealth
of Massachusetts, their joint and several promissory note, whereby
they promised to pay, in six months from said day, to said Boston and
Maine Railroad Company, or order, the sum of ten thousand dollars,
with legal interest thereon:
That said note was made by the said makers aforenamed for the
accommodation of the Portsmouth and Concord Railroad Company, a
corporation organized and existing under the laws of the state of
New Hampshire, to which corporation the sum of ten thousand dollars,
as consideration for said note, was paid, on the twenty-sixth day of
April, before mentioned, by the said Boston and Maine Railroad Com-
pany:
That said Charles A. Cheever died at said Exeter on the first day of
September, i&52, testate; that his will was duly proved at a Court of
Probate held at Exeter within and for the county of Rockingham, on
the ninth day of November, iS52; that by said will the defendants
John Cheever and Henry Cheever were nominated executors and de-
1. The words enclosed by [ ] will not jurisdiction of the court, and that it
be found in the reported case, but have appeared that the complainants had an
been added to render the form com- adequate remedy at law. The court
plete. held, however, that the bill stated suffi-
2. In Walker v. Cheever, 35 N. H. cient grounds for equitable relief, and
339, upon the facts of which case this that, notwithstanding the complain-
bill is based, the defendant demurred ants might have had an adequate
on the ground that the case made by remedy at law, equity was not ousted
the bill did not fall within the equity of its jurisdiction.
439 Volume 5.
6336. CONTRIBUTION. 6336.
clared residuary legatees; and that said defendants duly gave bond
as such executors, and duly qualified, and accepted such trust:
That on the first day of July, i85^, in order to avert suit then
threatened by said Boston and Maine Railroad Company, then holder
of said note, the six complainants above named were compelled to
pay, and did pay, to said company the sum of ten thousand dollars in
payment and discharge of said note:
That said John Knowlton and said Thomas A. Ttillock have since
such payment paid and refunded to the complainants the sums of
one thousand dollars each, wherefore no claim is made against them
and they are not made defendants herein:
That suits at law have been commenced against said Josiah Stevens
for the purpose of recovering from him his proportion of the note,
but whether said Stevens is solvent or not, or whether his share will
be collected, the complainants are unable to say:
That there is due from the defendants, as executors and residuary
legatees of said Charles A. Cheever, to the complainants, on account
of said payment of said note, and by way of contribution, the sum of
one thousand dollars, with interest thereon from the first day of July,
i 854, aforesaid:
That there have come to the hands of said defendants, as such
executors or as such residuary legatees, sufficient goods and estate
of the said Charles A. Cheever to satisfy the complainants' claim:
That immediately after the payment of said note by the com-
plainants, the complainants made demand upon the defendants, as
executors of said Cheever, to pay to said complainants one thousand
dollars, as the share of said Cheever, on the payment of said note; but
the defendants refused and have ever since refused so to do, and the
same has not been paid:
That since the probate of the will of said Cheever, aforementioned,
the defendants have for the most part resided out of this state, so
that the complainants have not had the means or opportunity, for
the space of time allowed by the statute and laws of this state in such
cases, to prosecute their claim against the executors, the said defend-
ants, at law or in equity or to serve process on them.
Wherefore the complainants pray that it may be ordered and de-
creed by said court, that the defendants come to a fair and just ac-
count with the complainants of the note aforesaid, and of the money
paid thereon by the complainants, and of the interest, charges and
expenses thereon, and of the fair and just share of the same to be
paid out of the estate of the said Charles A. Cheever by the defend-
ants as executors thereof; and that the defendants may be required
forthwith to pay the sum so found due from them in such capacity to
the complainants; and for such other and further relief as may be just.
James O. Walker.
Randolph C. Hurd.
Lawrence Huse.
Arthur M. Moody.
Robert Dorral.
William Plumer.
Emery 6" Hatch, Solicitors.
440 Volume 5.
6337. CONTRIBUTION. 6337.
Form No. 6337.
(Precedent in Caster v. Waggoner, 2,6 Ohio St. 450.)'
^ atC ^ r hWy , ! In the Court of Common Pleas.
Wyandot County, ss. f
Rosina Waggoner, plaintiff, \
against > Petition.
Robert Gaster, defendant. )
The plaintiff says:] 2
That on the 12th day of May, i87, John D. Sears, R. McKelly, C.
Berry, Jr., Henry Maddix, and D. D. Hare recovered a judgment in the
Court of Common Pleas of Wyandot county, in the State of Ohio, against
the plaintiff and the defendant, Robert Gaster, for the sum of $1,206
debt, and costs of suit amounting to $6.96. That on or about the 1st
day of June, i87#, the plaintiff, with her own means, paid off said
judgment and costs in full, whereby the defendant, Robert Gaster,
became indebted to the plaintiff in the sum of $606. Jfi, with interest
from May 12, i87&
[Wherefore said plaintiff prays judgment against said defendant
for said sum of 606.48, with interest from the twelfth day of May,
A. D. 1 875.
John D. Sears, Plaintiff's Attorney.] 2
II. BETWEEN CO-SURETIES.
1. In General. 3
1. The defendant in this case demur- to the cause of action upon which the
red to the petition on the ground that judgment had been rendered, and the
the nature of the cause of action which court held that it could not infer, as
produced the judgment was not stated, matter of law, that the cause of action
and that it did not appear that the was one which imposed upon the
defendant was beneficially interested in defendant the duty to contribute, and
the consideration of the joint liability hence that no sufficient consideration
on which the judgment was obtained, for the implied promise to contribute
But the court held that, as it appeared was alleged.
that the judgment was against the 2. The words and figures enclosed by
plaintiff and the defendant jointly, and [ ] will not be found in the reported
was for a debt, it was fairly made out case, but have been added to render the
that the claim was founded on a con- form complete.
tract and that the parties against whom 3. For the formal parts of a declaration,
the judgment was rendered were jointly complaint, petition or bill in equity in
liable for the claim; that the case thus a particular jurisdiction consult the
stated in the petition VISLS prima facie in titles DECLARATIONS; COMPLAINTS, vol.
favor of the plaintiff's right tocontribu- 4, p. 1019; BILLS IN EQUITY, vol. 3, p.
tion. It was for the defendant to show 417.
that the parties were not equally liable For statutes relating to contribution
on the daim. among co-sureties see as follows: '
On the other hand, in Bailey v. Buss- Alabama. Civ. Code (1886), 3149,
ing, 29 Conn, i, the declaration alleged 3151.
that a joint judgment had been recov- California. Civ. Code (1897), 2848;
ered against the plaintiff, the defendant Code Civ. Proc. (1897), 709.
and another, which the plaintiff had Delaware. Rev. Stat. (1893), p. 533,
been compelled to pay, and that the 3.
defendant was in duty bound and liable Florida. Rev. Stat. (1892), 983.
to pay to the plaintiff one-third of the Georgia. 2 Code (1895), 2989,
amount, but contained no allegation as 2992-2994.
441 Volume 5.
6337.
CONTRIB UTION.
6337.
Idaho. Rev. Stat. (1887), 411.
Indiana. Homer's Stat. (1896),
1215.
Iowa. Code (1897), 3826.
Kentucky. Barb. & C. Stat. (1894),
4665.
Louisiana. Voorhies' Rev. Civ. Code
(1889), arts. 2104, 3058.
Maine. Rev. Stat. (1883), c. 47, 9.
Maryland. Pub. Gen. Laws ( 1 888),
art. 8, g 7-
Minnesota. Stat. (1894), 5479.
Mississippi. Anno. Code (1892),
3279-
Missouri. Rev. Stat. (1889), 8349;
Burns' Anno. Prac. Code (1896), $1179.
Montana. Civ. Code (1895), 3694;
Code Civ. Proc. (1895), 1242.
New Jersey. Gen. Stat. (1895), p,
2566, 199.
North Carolina. I Code (1883), 2094.
North Dakota. Rev. Codes (1895),
4660.
South Carolina. Rev. Stat. (1893),
2310.
Tennessee. Code (1896), 5 390.
Texas. Rev. Stat. (1895), arts. 3815,
3816.
Virginia. Cote (1887), g 2895.
Washington, Ballinger's Anno.
Codes & Stat. (1897), 5710.
West Virginia. Code (1891), c. 101,
%s.
Allegation of Payment Generally.
There is no right to contribution until
payment of the debt, and payment must
consequently be alleged. See supra,
note i, p. 434. But an allegation
that plaintiff paid the debt by giving
his note is sufficient. Owen v. McGehee,
6 1 Ala. 440; Keller v. Boatman, 49 Ind.
104; Stubbins v. Mitchell, 82 Ky. 535.
What the plaintiff has received from
the principal must, of course, be de-
ducted from the amount toward which
defendant must contribute, and plain-
tiff is bound to realize on securities for
the benefit of his co-sureties; and if
plaintiff's declaration shows that the
plaintiff has surrendered such security
without the consent of his co-surety, or
has failed to collect it, it is fatally de-
fective. Taylor v. Morrison, 26 Ala.
728; Chilton v. Chapman. 13 Mo. 470;
Kerns v. Chambers, 3 Ired. Eq. (38 N.
Car.) 576.
Payment under Compulsion. It
should appear that the payment by
plaintiff was not voluntary, that is, was
not one that he could legally have re-
sisted. Skillin v. Merrill, 16 Mass. 40;
Russell v. Failor, I Ohio St. 327; Aid-
rich v. Aldrich, 56 Vt. 324. Thus if it
appear that the plaintiff paid a note
which was barred by the statute of limi-
tations, the defendant could success-
fully demur. Shelton v. Farmer, 9
Bush (Ky.) 314. But if plaintiff allege
that a judgment was recovered against
him, that is sufficient without a further
allegation that an execution was is-
sued. Stallworth v. Preslar, 34 Ala.
505; Buckner v. Stewart, 34 Ala. 529;
Bradley v. Burwell, 3 Den. (N. Y.) 61.
And in many states a complaint which
merely sets forth a valid debt, due in
pr&senti, without even alleging the re-
covery of a judgment against the plain-
tiff, is sufficient. Fishback v. Weaver,
34 Ark. 569; Harvey v. Drew, 82 111.
606; Minneapolis Mill Co. v. Wheeler,
31 Minn. 121; Crisfield v. Murdock, 127
N. Y. 315; Mason v. Pierron, 69 Wis.
585-
Co-surety's Knowledge of Suit. In
Malinz/. Bull, 138. & R. (Pa.) 441, it was
held that a surety who had been com-
pelled, by a suit at law, to pay the
debt, need not allege, in his complaint
against his co-surety for contribution,
that the latter had notice of the earlier
suit. If there was no such notice, how-
ever, the court says it would be open
to the defendants to show that the
former judgment was erroneous. It
would seem that, whether there were
notice or not, the surety would not be
concluded as to his liability for the
debt by a judgment against his co-
surety unless he was a party to the
suit. Lowndes v. Pinckney, I Rich.
Eq. (S. Car.) 155; Glasscock z/. Hamil-
ton, 62 Tex. 143.
Payment of More than Plaintiff's Share.
The complaint or declaration must
allege that the plaintiff has paid
more than his just share of the debt.
Taylor v. Means, 73 Ala. 468; Lytle v.
Pope, II B. Mon. (Ky.) 309; Wood v.
Leland, I Met. (Mass.) 387. But it need
not necessarily show that plaintiff has
paid more than half the debt, provided
it sets forth that the creditor has
given a release in full or that the debt
is discharged. Stallworth v. Preslar,
34 Ala. 505; Werborn v. Kahn, 93 Ala.
201.
Inability to Collect from Principal.
There has been much difference of
opinion as to whether plaintiff must
allege that he has been unable to ob-
tain reimbursement from the principal,
or, in other words, that the latter is in-
solvent. In equity, it seems that such
an allegation is necessary. Morrison
v. Poyntz, 7 Dana (Ky.) 307; Stone v.
442
Volume 5.
6338.
CONTRIBUTION.
6338.
Form No. 6338.
(Precedent in Stallworth v. Preslar, 34 Ala. 506.)
[The State of Alabama. ) T /- -^ /- r T-
Choctaw County. f In the Clrcult Court ' J une Term >
William M. Stallworth \ The plaintiff claims of the defendant the
vs. > sum of five hundred dollars, being one-half
Holden Preslar. ) the sum of one thousand dollars, paid by said
plaintiff in satisfaction of a certain judgment rendered in the county
court of Monroe county, Alabama, at its January term, 18^, for the
sum of three thousand four hundred and sixty-six 31-100 dollars,
together with the costs, in favor of Halsey, Utter 6* Co., against
Thomas R. Watts and said plaintiff; said judgment being founded on
a promissory note for the sum of two thousand six hundred and forty-
six 04-100 dollars, made at Sparta, Alabama, on the llth July, i&37,
negotiable and payable at the Branch Bank at Mobile, due on the
1st day of March next after the date thereof, signed by said Thomas
R. Watts, said defendant and plaintiff, and in favor of Halsey, Utter
& Co. And said plaintiff avers that he together with said defend-
ant signed said note as the sureties of said Watts; that suit was
brought on said note by Halsey, Utter 6r- Co., against said Watts,
Buckner, 12 Smed. & M. (Miss.) 73;
Allen v. Wood, 3 Ired. Eq. (38 N. Car.)
386. In actions at law. on the other
hand, the contrary is the rule. Buck-
ner v. Stewart, 34 Ala. 529; Taylor v.
Reynolds, 53 Cal. 686; Sloo v. Pool, 15
111. 47; Croy v. Clark, 74 Ind. 597;
Goodall v. Wentworth, 20 Me. 322; Od-
lin v. Greenleaf, 3 N. H. 270. And with
the modern fusion of law and equity
courts it has become less and less com-
mon to regard such an allegation as
essential. But if it appeared from the
declaration that plaintiff had failed to
enforce an indemnity held by him a
demurrer by his co-surety would be
sustained. Frink v. Peabody, 26 111.
App. 390.
Demand on Co-surety. Plaintiff need
not allege a previous demand upon the
defendant for his share of the debt.
Collins v. Boyd, 14 Ala. 505; Taylor v.
Reynold, 53 Cal. 686; Chaffee v. Jones,
19 Pick. (Mass.) 260. Contra, Carpen-
ter v. Kelly, 9 Ohio 106.
Sureties' Liability the Same. A com-
plaint for contribution is not neces-
sarily defective because it shows that
the sureties were not bound by the
same instrument, provided it shows
that they were bound for the same
principal and the same undertaking.
Breckinridge v. Taylor. 5 Dana (Ky.)
no; Craig v. Ankeney, 4 Gill (Md.)
225; Chaffee v. Jones, 19 Pick. (Mass.)
260; Armitage v. Pulver, 37 N. Y.
494; Butler v. Birkey, 13 Ohio St. 514.
For the form of a complaint in such a
case see Stevens v. Tucker, 87 Ind. 109.
On the other hand, if the complaint
shows that the plaintiff and defendant
were bound for different debts, or dif-
ferent portions of the same debt, it is
of course bad. Hammock v. Baker, 3
Bush (Ky.) 208; Chapman v. Garber,
46 Neb. 16; Hanner v. Douglass, 4
Jones Eq. (57 N. Car.) 262; Rosenbaum
v. Goodman, 78 Va. 121. And it must
not appear from the complaint that by
the terms of the contract each surety
was to be liable only for a certain sum.
In such cases there is no right to con-
tribution. Paul v. Berry, 78 111. 158;
Bagott v. Mullen, 32 Ind. 332; Barry
v. Ransom, 12 N. Y. 462; Moore v.
Isley, 2 Dev. & B. Eq. (22 N. Car.) 372.
If it appears from the complaint that
while plaintiff is the surety of the princi-
pal, defendant is the surety of a surety,
or vice versa, a demurrer will be sus-
tained. Both must stand in the same
relation to the principal. Bulkeley v.
House, 62 Conn. 459; Robertson v,
Deatherage, 82 111. 511; Price v. Ed-
wards, ii Mo. 524; Adams v. Flanna-
gan, 36 Vt. 400.
1. The words and figures enclosed by
[ ] will not be found in the reported
case, but have been added to render the
form complete.
443
Volume 5.
6339. CONTRIBUTION. 6339.
plaintiff and defendant; that said suit was discontinued as to said
defendant, because the writ was not served on him; that the judg-
ment hereinabove mentioned was rendered against said Watts, who
then was, and continued thereafter to be insolvent, and died insol-
vent, without having paid said judgment, which was also rendered
against plaintiff, which said judgment being unreversed and in full
force, plaintiff has paid and satisfied the same by the payment of one
thousand dollars, to wit, on the 15th April, i85^. By means whereof,
the defendant became liable to pay and reimburse to plaintiff the
said sum of five hundred dollars, with interest thereon, being one-half
of the said sum of one thousand dollars. The plaintiff claims of the
defendant, also, the further sum si five hundred dollars, for moneys
paid, laid out and expended, by said plaintiff, for said defendant, at
his request, to wit, on the 15th April, iSo4- Said sums of money,
with the interest thereon, remain unpaid.
[William Eoyles, Attorney for Plaintiff.] 1
Form No. 6339.*
Pulaski Circuit Court.
John Doe, plaintiff, )
against > Complaint at Law.
Richard Roe, defendant. )
The plaintiff, John Doe, states that on the first day of July, i8P5,
one John Fen made and delivered to one Richard Den, his promissory
note, dated on said day and due twelve months after date, payable to
said Richard Den or order, for five hundred dollars (a copy of said
note is herewith filed, marked Exhibit A, and made a part hereof);
that the plaintiff and the defendant signed said note as sureties to
the said Richard Den or his assigns; that when said note became
due saidyW/# Fen was wholly insolvent and unable to pay the same,
and has ever since remained so insolvent and unable to pay; that
thereupon, being threatened with suit upon said undertaking of sure-
tyship on said note, the plaintiff was compelled to pay to said Richard
Den on the eighth day of July, i894, the sum of five hundred dol-
lars thereon; that immediately thereafter the plaintiff demanded of
the defendant that he pay to the plaintiff two hundred and fifty
dollars as his share of said compulsory payment, but the defendant
refused and has ever since refused.
Wherefore the plaintiff demands judgment against the defend-
ant for two hundred and fifty dollars, with interest thereon from the
eighth day of July, i&94, and all other proper relief.
Jeremiah Mason, Plaintiff's Attorney.
( Verification. ) 3
1. The words enclosed by [ ] will not p. 1639, No. 80. See also Sand. & H.
be found in the reported case, but have Dig. Ark. (1894), 7314.
been added to render the form com- 3. For the form of verification in a
plete. particular jurisdiction consult the title
2. This form is adapted from the VERIFICATIONS.
form in Sand. & H. Dig. Ark. (1894),
444 Volume 5.
6340. CONTRIBUTION. 6341.
Form No. 6340.'
Thomas Newcomb '\ r ,, c ^^
against y Su ff olk * Su P- Ct -
Nehemiah Gibson.^ Plaintiff's Declaration.
And the plaintiff says that A. S. Smalley made a promissory note for
twenty-five hundred dollars to the order of A. S. Foss,^^ the plaintiff
and the defendant signed the note as joint sureties for Smalley; that,
in May, i8#7, said Foss recovered judgment against said Smalley, the
plaintiff and the defendant, in the sum of two thousand eight hundred and
eighteen dollars and thirty-eight cents; that said sum with the expenses
accruing upon the execution thereon, amounting in all to the sum of
two thousand eight hundred and eighty-four dollars and seventy-seven cents,
was collected of the plaintiff; that the note was secured in part by cer-
tain bonds, which the plaintiff received upon the settlement of the
execution, and sold for five hundred dollars ; and the defendant owes
the plaintiff eleven hundred ninety-two dollars and thirty-eight cents.
Thomas Newcomb,
By C. S. Griffin, his Attorney.
Form No. 6341.
(Precedent in Adams v. Hayes, 120 N. Car. 383.)*
\North Carolina, ) In the Superior Court,
Wautauga County. \ Spring Term, iS96.
Zack Adams, plaintiff,
against
/. L. Hayes, Wm. T. Hayes, E. H. V Complaint.] 3
Dougherty and E. F. Loi'ill, de-
fendants. J
The plaintiff in the above entitled action, complaining of the
defendants, alleges:
1. That on the 30th day of May, i8<?, F. M. Hodges and R. A. Adams,
doing business under the style and firm of Hodges & Adams, executed
their promissory note toZ. A. Green for the sum of $600, withy. L.
Hodges, Wm. T. Hayes, E. H. Dougherty, E. F. Lovill and this plaintiff
as sureties on said above note.
2. The principals in above mentioned note having failed to pay
off and satisfy same at maturity, suit was accordingly entered at
Spring Term, \W1, in the Superior Court of Wautauga county by L. A.
Greene, plaintiff, for balance due on said note, to wit, $526 principal,
and $23. 52 interest, together with $11.40 cost of action, making a total
amount of $560.92; and at June Term of Wautauga County Superior
Court judgment was obtained against F. M. Hodges and R. A. Adams,
1. This is substantially the plaintiffs perfectly alleged, the cause of action
declaration in the case of Newcomb v. will be construed, on demurrer, as
Gibson, 127 Mass. 396. equitable rather than legal.
2. Judgment sustaining a demurrer 3. The words and figures enclosed by
to this complaint was overruled by the [ ] will not be found in the reported
supreme court, which held that though case, but have been added to render the
a proper relief was not asked and the form complete.
insolvency of the principals was im-
445 Volume 5.
6342. CONTRIBUTION. -0342.
principals, and J. L. Hayes, Wm. T. Hayes, E. H. Dougherty, E. F.
Loinll and this plaintiff, Z. Adams, as sureties, when this plaintiff, Z.
Adams, one of said sureties, paid off and satisfied said judgment in full.
3. That $160. 66 was paid by plaintiff as receiver of Hodges & Adams,
out of funds of said Hodges 6 Adams, which came into his hands as
said receiver, leaving a balance of $400.33, which amount this plaintiff
was forced to pay under said execution out of his own private funds.
4. That repeated demands have been made upon J. L. Hayes, Wm.
T. Hayes, E. H. Dougherty and E. F. Lovill, the co-sureties, for their
contributive shares, which they have neglected and refused, and still
neglect and refuse, to pay, to the great damage of this plaintiff.
Wherefore, plaintiff prays that he may have judgment against the
defendants in this action for the sum of $320.24, with interest from
October 10, i895, which said amount is four-fifths of amount paid by
this plaintiff, and for costs of this action, and for such other and fur-
ther relief as the court may adjudge.
[Jeremiah Mason, Plaintiff's Attorney.] 1
2. Where Some Co-sureties are Insolvent. 2
Form No. 6342.
(Commencing as in Form No. 6382, and continuing down to *. )
1. On May 1st, i879, Samuel Short, Leonard A. Ford, William West,
and the plaintiff and defendant, made and delivered to Henry Rogers
their promissory note, of which a copy is hereto annexed, marked
Exhibit A.
2. At the maturity of said note the plaintiff was compelled to pay
and did pay all of said note.
3. That at the time plaintiff paid said note, the principal and all
the other parties thereto except the plaintiff and defendant then
were and ever since have been wholly insolvent, and had not then
nor have they since had any property subject to execution.
4. That defendant was and is bound to pay $1,000 to plaintiff as
his contributive share.
5. On November 1st, iS79, plaintiff demanded of defendant said
sum or contributive share of $1,000, which he refused to pay, and
no part thereof has been repaid to plaintiff.
The plaintiff claims $1,200 damages. (Concluding as in Form
No. 6332.)
1. The words enclosed by [ ] will not are apportioned among the rest. And
be found in the reported case, but have it is the same where one or more of the
been added to render the form com- sureties have left the state. Security
plete. F. & M. Ins. Co. v. St. Paul Ins. Co.,
2. If the plaintiff, who has paid the 50 Conn. 233; Stothoff v. Dunham, ig
entire debt, allege in his complaint N. J. L. 181; Young v. Lyons, 8 Gill
that one or more of his co-sureties are (Md.) 166; Dodd v. Winn, 27 Mo. 501;
insolvent, he may demand from the Liddell v. Wiswell, 59 Vt. 365. This
defendant the proportion he would was always the rule in equity, and it
have been bound to pay, had there has now been generally adopted by
been no sureties but those who re- courts of law.
main solvent; that is, where some of For the substance of other bills, pe-
the sureties are insolvent, their shares titions, declarations or complaints,
446 Volume 5.
6343. CONTRIBUTION. 6343.
3. Where Contribution is Sought from Estate of
Deceased Co-surety. 1
Form No. 6343.*
The State of Ohio, \ T . . n , ~ D ,
Hamilton County, ss. [ In the C Urt f C mm H Ple ? 5 '
John Doe, plaintiff, ^j
against
Richard Roe, as administrator > Petition.
of the estate of Samuel Short,
deceased, defendant.
John Doe, the plaintiff above named, complains of Richard Roe, as
administrator of the estate of Samuel Short, deceased, defendant, and
says:
I. That on the twenty- fourth day of January, i889, said Samuel
Short died intestate, said Short being at the time of his death a resi-
dent of the county of Hamilton, in the state of Ohio.
II. That on the twenty-sixth day of April, i889, letters of adminis-
tration on the estate of said Samuel Short, deceased, were duly issued
to Richard Roe, the said defendant, by the Probate Court of said
Hamilton county, in the state of Ohio, appointing said Richard Roe
sole administrator of said estate; and that thereupon Richard Roe,
the said defendant, duly qualified as such administrator, and imme-
diately entered upon the discharge of his duties as such administra-
tor, and ever since that time has been and now is acting as such
administrator.
III. That plaintiff and defendant's intestate were sureties on the
official bond of one Leonard A. Ford, treasurer of the school district
where some of the sureties are in- finally settled before the commence-
solvent, see Burroughs v. Lott, 19 Cal. ment of the action. The court over-
125; Newton v. Pence, 10 Ind. App. ruled the demurrer, saying that though
672; Lytle v. Pope, n B. Mon. (Ky.) the word "final" was not used in de-
299; Young v. Lyons, 8 Gill (Md.) 162; scribing it, the settlement stated con-
Smith t/. Mason, 44 Neb. 610. stituted a final settlement.
1. Contribution from Heirs of Deceased For substance of other declarations,
Co-surety. For forms of declarations, complaints, etc., against representa-
complaints and petitions against the lives of a deceased co-surety see the
heirs of deceased co-sureties see Gib- following cases: Conover v. Hill, 76
son v. Mitchell, 16 Fla. 519; Stevens v. 111. 342; Zollickoffer r. Seth, 44 Md.
Tucker, 87 Ind. 109; Camp v. Bost- 359; Bachelder v. Fiske, 17 Mass. 464;
wick, 20 Ohio Stat. 337; Glasscock v. Van Demark v. Van Demark, 13 How.
Hamilton, 62 Tex. 143. Pr. (N. Y. Supreme Ct.) 372; Bradley
In the second of these cases the com- v. Burwell, 3 Den. (N. Y.) 61; McKenna
plaint alleged that the administrator v. George, 2 Rich. Eq. (S. Car.) 15.
of the deceased co-surety had fully set- 2. This form is based on the facts in
tied the estate, having fully adminis- Koelsch v. Mixer, 52 Ohio St. 207, in
tered upon the same, and was duly which case defendant answered that he
and fully discharged by the court of was sued with the plaintiff in the suit
proper jurisdiction, and that the sur- on the alleged bond and by the verdict
plus of the estate had been distributed of a jury was relieved from liability
among the heirs. The defendant de- thereon. It was held that the judg-
murredtothis complaint on the ground ment rendered on the verdict was not
that it does not sufficiently show that conclusive between the parties in the
the estate of the deceased had been suit for contribution.
447 Volume 5. '
6344. CONTRIBUTION. 6344.
of Reading, Hamilton county, Ohio, a copy of which bond is hereto
annexed, marked Exhibit A.
IV. That at the April term, i8#, of the Court of Common Pleas of
Hamilton county, Ohio, the state of Ohio, for the use of the village
school district of Reading, Ohio, recovered a judgment, by the con-
sideration of said court, against this plaintiff in the sum of one thou-
sand eight hundred and ninety dollars and fifty-eight cents damages and
tliirty-three dollars and forty-seven cents costs of said case.
V. That on the frventy-fifth day of July, i889, plaintiff was com-
pelled to pay, and did pay, in satisfaction of the said judgment, the
sum of one thousand seven hundred and twenty-five dollars and five cents.
VI. That the amount due plaintiff from defendant, as administra-
tor aforesaid, as the contributive portion of said Samuel Short,
deceased, is eight hundred and sixty-two dollars and fifty-two cents.
VII. That on the twenty-fifth day of July, iS89, said claim was
presented to and rejected by said administrator.
Wherefore said plaintiff prays judgment against said defendant for
said sum of eight hundred and sixty-two dollars and fifty-two cents,
with interest from the twenty-fifth day of July, iB89.
Jeremiah Mason, Plaintiff's Attorney.
III. BETWEEN PARTNERS. 1
Form No. 6344
The State >oi South Carolina, \ c f c pl
County of Spartanburg. j
John Doe, plaintiff, }
against
Richard Roe, defendant. )
The complaint of the above named plaintiff respectfully shows to
this court, that on the fourteenth day of October, i889, and for a long
time prior thereto, the plaintiff and defendant were partners, carry-
ing on business as manufacturers of boots and shoes in Spartanburg,
in said county, under the firm name of Doe & Roe; that on ^^four-
teenth day of October, i8P7, said partnership was, by mutual consent,
dissolved, the accounts of the firm with the partners settled, all
claims collected, and all debts paid, 2 except one owing to Samuel
1. For a collection of authorities on AND EXONERATION, 7 Am. & Eng.Encycl.
the subject of contribution between of L. (ad ed.), p. 360 et seq.
partners see 3 Am. and Eng. Dec. in 2. Affairs of Partnership Wound Up.
Eq., 192-197. From these cases it ap- It must appear that the partnership
pears that the substantial allegations affairs have been settled before an
of the ordinary bill or complaint are action for contribution can be main-
these: That the plaintiff and defendant tained. Johnson v. Peck, 58 Ark. 580;
were partners; that the firm was wound Mussetter v. Timmerman, n Colo. 201.
up and its accounts with the partners Crossley v. Taylor, 83 Ind. 337; Wend-
settled; that plaintiff was compelled to landt v. Sohre, 37 Minn. 162; Harris v.
pay a firm debt out of his own property; Harris, 39 N. H. 45; Brown v. Agnew,
that defendant should contribute his 6 W. & S. (Pa.) 238; Kelly v. Kauffman,
proportional part. 18 Pa. St. 351; 3 Am. & Eng. Dec. in
See generally as to contribution be- Eq., pp. 192-197.
tween partners the title CONTRIBUTION
448 Volume 5.
6345. CONTRIBUTION, 6345.
Short, of Pittsburg, in the state of Pennsylvania; that in the settlement
of said accounts the debt so due to the said Samuel Short was over-
looked, and that on the third day of December, i8#7, and after the said
settlement of the partnership affairs, the said Samuel Short recovered
judgment against this plaintiff and defendant for the sum of five
hundred dollars in the Court of Common Pleas of Spartanburg county,
in the state of South Carolina; and that on said day the plaintiff, in
.order to prevent the levying of an execution on his personal property,
paid the said judgment; that defendant thereby became liable to pay
to plaintiff one- half of said sum, to wit, the sum of two hundred and
fifty dollars, but though often requested so to pay, he has hitherto
failed and absolutely refused to make such payment.
Wherefore, plaintiff demands judgment against defendant for said
sum of two hundred and fifty dollars, with interest from the third day
of December, i87.
Jeremiah Mason, Plaintiff's Attorney
IV. BETWEEN STOCKHOLDERS. 1
Form No. 6345.
Supreme Court, Kings County.
John Doe, plaintiff,
against
Richard Roe, defendant.
Plaintiff complains and says:
I. That The Ontario Wine and Fruit Company was a corporation
duly organized under the laws of the state of New York, and having
its usual place of business in Oswego in said state.
II. That the plaintiff and defendant were stockholders in said cor-
poration, the defendant owning ten shares of its corporate stock out
of one hundred and forty-one issued.
III. That the corporation distilled five thousand five hundred gallons
of brandy and spirit, upon which it was liable to pay to the govern-
ment of the United States a tax of one dollar per gallon, and which
amounted in the aggregate to five thousand five hundred dollars.
IV. That by chapter 74 of the Laws of 1894, stockholders in such
corporations are jointly and severally liable for such tax.
V. That in iS96, the United States of America brought an action
in the Circuit Court of the United States, second circuit, against the
plaintiff and others, all stockholders in said corporation, to recover
from them said tax. 2
1. For statutes relating to contribu- 2. Inasmuch as the plaintiff and the
tion among stockholders see as follows: defendant, with all other stockholders,
Iowa Code (1897), 1633. are jointly liable by statute for the
Maine. Rev. Stat. (1883), c. 47,847. tax, it is immaterial that the complaint
Michigan. How. Anno. Stat. (1882), does not allege that the defendant in
4878, 4898. this action was one of the defendants
Minnesota. Stat. (1894), 2822. in the suit brought by the United
New Hampshire. Pub. Stat. (1891), States, for the defendant's obligation
c. 150, 21. to contribute to the amount paid by the
Rhode Island. Gen. Laws (1896), c. plaintiff as a result of the suit arises,
180, 23. not from the judgment but from the
5 E. of F. P. 29. 449 Volume 5.
6346.
CON TRIE UTION.
6346.
VI. That the said corporation was insolvent at the time and had
no property, and it has continued insolvent. 1
VII. That the United States recovered judgment for two thousand
two hundred dollars, and on January second, i8$7, an execution issued
on said judgment, and was about to be levied on the plaintiff's prop-
erty, when he paid the said judgment and costs in full, amounting to
two thousand three hundred and forty dollars. 2
VIII. That thereupon, the defendant became liable to contribute
and pay to the plaintiff ten one hundred forty-firsts of the expense to
which the plaintiff was put as a result of said suit by the United States.
The plaintiff prays judgment for one hundred and seventeen dollars.
Jeremiah Mason, Plaintiff's Attorney.
( Verification^
V. BETWEEN JOINT OWNERS OF PROPERTY. 4
1. Where Plaintiff has Repaired Property.
Form No. 6346.
(Title of court and cause as in Form No. 6345.)
Plaintiff complains and says:
I. That the plaintiff and the defendant are tenants in common of
the house numbered 97 on West Forty-fourth street in New York City.
common liability under the statute. ,
The judgment is of importance merely
as showing that the plaintiff paid the
tax under compulsion. Richter v. Hen-
ningsan, no Cal. 530; Wolters v. Hen-
ningsan, 114 Cal. 433.
1. Plaintiff is not entitled to contribu-
tion if it appears that all the property
of the corporation which was bound to
reimburse him has not been first ap-
plied and exhausted. Gray v. Coffin,
9 Cush. (Mass.) 192.
2. Payment Involuntary. It must not
appear in the bill that the payment by
the plaintiff was voluntary. Andrews
v. Callender, 13 Pick. (Mass.) 484; Gary
v. Holmes, 2 Allen (Mass.) 498.
8. For the form of verification in a
particular jurisdiction consult the title
VERIFICATIONS.
4. Contribution Between Ship-owners.
Where one joint owner of a ship, who
has paid for necessary repairs, seeks
contribution from his co-owners, he
must declare on a contract, express or
implied, for in the absence of any agree-
ment sanctioning the repairs no right
of contribution exists. Curling v. Rob-
ertson, 7 M. & G. 336, 49 E. C. L. 335;
Brodie v. Howard, 17 C. B. 109, 84 E.
C. L. 109; Hardy v. Sproule, 31 Me. 71;
Pentz v. Clarke, 41 Md. 327; Stedman
v. Feidler, 20 N. Y. 437. See, however,
Sheehan v. Dalrymple, 19 Mich. 239;
Story on Partnership, 423.
Contribution to Cost of Party-Walls.
For forms of declarations by an owner
of land who has built a party-wall at his
own expense between his land and his
neighbor's, and seeks contribution from
the neighbor, see 2 Chit. PI. (6th Am.
ed.), pp. 247-251; Campbell v. Mesier, 4
Johns. Ch. (N. Y.) 334. In this case
the substantial allegations of the bill
were: that plaintiff and defendant were
owners of adjoining houses; that plain-
tiff, being desirous of tearing down his
old house and building a new one, was
informed by experts that the party-wall
which separated his house from his
neighbor's would have to be rebuilt,
owing to its ruinous condition; that the
neighbor, upon request, refused to join
in expense of building a new wall and
forbade plaintiff's proceeding with the
work; that plaintiff, nevertheless, had
the wall rebuilt; that the neighbor de-
vised his house and land to the defend-
ant, who made use of the wall. The
bill prayed that the defendant be com-
pelled to contribute one-half of the
expense of building the wall.
For a full collection of authorities on
the subject of contribution in connec-
tion with party-walls see 3 Am. & Eng.
Dec. in Eq., pp. 189-192.
450
Volume 5.
6347.
CON TRIE UTION,
6347.
II. That on the fourth day of June, i897, a portion of the roof of said
house was struck by lightning and broken through, leaving the room
below exposed to the air, and making immediate repairs essential to
the preservation of a large amount of property. 1
III. That the plaintiff requested the defendant to join him in order-
ing repairs, 2 and to pay one-half of the expense thereof, which the
defendant absolutely refused to do.
IV. That thereupon the plaintiff had the roof repaired and paid the
entire expense thereof, amounting to six hundred dollars. One-half
of which sum defendant was bound to contribute, but which he has
refused absolutely to pay.
Wherefore plaintiff prays judgment for three hundred dollars with
interest from they?/ day oi July, i8P7, and his costs and disburse-
ments in this action.
Jeremiah Mason, Plaintiff's Attorney.
(Verification.)" 3
Form No. 6347.
(Precedent in Baltimore, etc., R. Co. v. Walker, 45 Ohio St. 578.)*
[The State of Ohio, \ T ., ^ , ~ ,
L JT**: County, ss. } In the Court f Common Pleas '
Go shorn A. Jones as receiver of the property
of the Cleveland, Mt. Vernon 6* Delaware
Railroad Company, plaintiff,
against
The Baltimore & Ohio Railroad Company,
defendant.
The plaintiff, as receiver of the property of the Cleveland, Mt.
> Petition.
1. Unnecessary Improvements. If the
complaint sets forth mere improve-
ments, made by plaintiff on the joint
estate, as distinguished from necessary
repairs, and contains no allegation of
assent by his co-tenant, it states no
cause of action. Bazemore v. Davis,
55 Ga. 504; Elrod v. Keller, 89 Ind.
382 ; Stevens v. Thompson, 17 N. H.
103; Beaty v. Bordwell, 91 Pa. St. 438.
2. Bequest to Defendant to Contribute.
As a general rule, one tenant in com-
mon can compel his co-tenant to con-
tribute to the expense of necessary
repairs to a house or mill belonging to
them. Gardner v. Diedrichs, 41 111.
158; Alexander v. Ellison, 79 Ky. 148;
Denman v. Prince, 40 Barb. (N. Y.)2i3.
But he must allege in his complaint
that he requested his co-tenant to join
in the repairs and the latter refused.
Mumford v Brown, 6 Cow.(N. Y.)475;
Taylor v. Baldwin, 10 Barb. (N. Y.)
582; Stevens v. Thompson, 17 N. H.
103; Kidder v. Rixford, 16 Vt. 172.
But allegations that the co-tenant was
absent and that the repairs were bene-
ficial will supply the place of an allega-
tion of request, for assent will be
presumed. Haven v. Mehlgarten, 19
111. 91. See also Chapin v. Smith, 52
Conn. 260.
In Massachusetts, if the co-tenant does
not consent to the repairs, no action at
law can be maintained. Colvert v.
Aldrich, 99 Mass. 74.
3. For the form of verification in a
particular jurisdiction consult the title
VERIFICATIONS.
4. While this action was pending in
the court of common pleas, Jones
ceased to be receiver, and one George
D. Walker, who had been appointed
his successor, was, by the consent of
the parties and by order of the court,
subscribed as party plaintiff. There-
upon the cause was submitted to the
court and judgment rendered for the
plaintiff. Motions for a new trial and bill
of exceptions were overruled and the
judgment was affirmed by the supreme
court, the court saying that " the right
451
Volume 5.
6347. CONTRIBUTION. 6347.
Vernon <2r* Delaware Railroad Company, alleges :] x that the said Cleveland,
Mt. Vernon 6 Delaware Railroad Company is a corporation, created
and organized under the laws of the state of Ohio, and under said
corporate name, built, constructed and operated a line of road
extending from Hudson to Columbus, Ohio, by the way of Akron and
Mt. Vernon, Ohio, and have conducted and operated said railroad
under said corporate name from about the 1st of July, i87<?, up to the
1st day of December, A. D. iS81: That on or about the 27th day of
September, i880, the said GoshornA. Jones was by the judge of the
court of common pleas within and for the county of Summit, Ohio, in a
certain proceeding therein pending against said Cleveland, Mt. Vernon
&* Delaware Railroad Company appointed receiver of said railroad com-
pany, which position he accepted by executing a bond to the accept-
ance of said court, and entered upon the discharge of his duties as
receiver; that he is still acting in the said capacity. The said plain-
tiff says that the said defendant, the Baltimore & Ohio Railroad Com-
pany, is a foreign corporation, created and organized under the laws
of the state of Maryland, and is now and was on the 1st day of July,
A. D. 1 875, the lessee of the Sandusky, Mansfield 6 Newark Railroad
Company, a corporation created and organized under the laws of the
state of Ohio, and as such lessee the said defendant manages, con-
trols and operates the line and track of said Sandusky, Mansfield &
Newark Railroad Company from the city of Sandusky to the city of
Newark, in said state of Ohio, and through the county of Knox, and
a portion of the city of Mt. Vernon, and the said defendant, the
Baltimore cr> Ohio Railroad Company, runs its passenger and freight
trains, locomotive engines and cars, and machinery, over and upon
said track and line of road. The said plaintiff says that the railroad
track of said Clmeland, Mt. Vernon &* Delaware Railroad Company,
and the railroad track of the Baltimore 6 Ohio Railroad Company on
the Lake Erie division, a short distance southwest of Mt. Vernon,
Ohio, cross each other at a common grade; that the crossing at said
point was made and constructed by the said Cleveland, Mt. Vernon &*
Delaware Railroad Company about the 1st day of July, A. D. i87#,
that all the material used and labor performed in constructing said
crossing, including the materials used and labor performed in build-
ing the watchman's house, were all furnished, supplied and paid for
by the said Cleveland, Mt. Vernon 6 Delaware Railroad Company;
that said crossing and house for a watchman was done, and con-
structed for the common interest, benefit and necessity of the Cleve-
land, Mt. Vernon 6" Delaware Railroad Company, and the defendant,
the Baltimore 6 Ohio Railroad Company; the plaintiff says that from
the 1st day of October, i87<?, the said Cleveland, Mt. Vernon <5r* Dela-
ware Railroad Company have kept, maintained and paid the salary of
a competent watchman, who performed all the necessary work, labor
and services required by the laws of Ohio; that the services of said
of the plaintiff to recover upon the case l.The words enclosed by [ ] will not
made in his petition is sustained by be found in the reported case, but have
sound reason and sanctioned by author- been added to render the form com-
ity; the judgment recovered by him plete.
should be affirmed."
452 Volume 5.
6348. CONTRIBUTION. 6348.
watchman were for the mutual benefit of the said plaintiff and the
said defendant, and such as was and is required by the laws of Ohio,
to be kept and maintained at railroad crossings. The said plaintiff
says that the amount of expenditure necessary to be made for the
construction and repairs, and maintenance of said railroad crossing,
with the amount paid the watchman, and for erection of the watch-
man's house, from said 1st day of October, iS73, to the 1st day of
December, A. D. i&81, amounts, with interest, to the sum of ($5,789.05)
five thousand seven hundred and eighty-nine dollars and five cents, an
itemized statement of said account of expenditures is hereto at-
tached, marked Exhibit " A " and made a part of this petition.
The said plaintiff further says, that said defendant became and was
liable to bear and pay one-half of said expense, and the said defend-,
ant is now indebted to the said plaintiff in the sum of ($2,89Jf.52) two
thousand eight hundred and ninety-four dollars and fifty-two cents, the
one-half of the said sum of $5,789.05, the amount paid out and
expended by the said plaintiff as aforesaid, with interest included.
The plaintiff has frequently requested and demanded of the said
defendant payment of the said sum due the plaintiff, which the said
defendant has refused to pay, or any part thereof.
There is now due from said defendant to said plaintiff the said
sum of two thousand eight hundred and ninety-four dollars and fifty-two
cents, for which sum of $2,894-52 the plaintiff prays judgment against
said defendant with interest from the 1st day of December, iS81.
[H. H. Greer, Plaintiff's Attorney.] 1
2. Where Plaintiff has Removed an Incumbrance from
Property. 2
Form No. 634 8. 3
State of Illinois, ) In the Circuit Court of Adams County, June
Adams County. ) Term, A. D. iS82.
To the Hon. J. H. Williams, Judge of said Court. In Chancery
Sitting.
Your orators, Matilda A. C. Griffith and A. G. Griffith, her hus-
band, of the town of Ashland, in said county and state, respectfully
1. The words enclosed by [ ] will not the court remarked that the right to
be found in the reported case, but have contribution does not arise out of any
been added to render the form com- contract or agreement of the co-tenants
plete. to indemnify each other, but on the
2. For the material allegations of bills principle of equity, that where two or
for contribution toward taxes, filed by more persons are subject to a common
ownersof a certain estate in land against burden it shall be borne according to
owners of another estate in the same their several interests. See also Wilton
land, see Williams v. Craig, 2 Edw. Ch. v. Tazwell, 86 111. 29; Weare v. Van
(N. Y.) 297; Dikeman v. Dikeman, n Meter, 42 Iowa 128: Van Brunt v. Gor-
Paige (N. Y.) 484. don, 53 Minn. 227; Davidson v. Wallace,
8. This bill is based on the facts in 53 Miss. 475; Allen v. Poole, 54 Miss,
the case of Griffith v. Robinson, 14 111. 323; Watson's Appeal, 90 Pa. St. 426;
App. 377, in which case, in reversing a In re Devlin's estate, 17 Pa. Co. Ct.
decree overruling a demurrer to the bill. Rep. 433; Wilmot v. Lathrop, 67 Vt. 671.
453 Volume 5.
6348. CONTRIBUTION. 6348.
show unto your honor that your orator Matilda A. C. Griffith and
Martha M. Robinson are sisters, and children of one Jesse Robinson,
late of said county, deceased, who died on the sixth day of July, i87#,
intestate, leaving him surviving his said two daughters; that the said
two daughters were the only heirs of their deceased father, and as such
were the owners in fee as tenants in common of certain lands owned
by him in fee, at the time of his death as aforesaid, and lying in said
county of Adams; that on the fifth day of September, iS79, letters of
administration were granted on the estate of said intestate by the
County Court of Adams county to Samuel Short, who duly qualified as
such administrator, and immediately entered upon the discharge of
his duties as such administrator; that claims in favor of certain cred-
itors were presented and allowed against the administrator by said
court, to the amount of one thousand dollars; that the personal estate
was declared insolvent, and that a petition for leave to sell the real
estate to pay said allowance was duly presented to said County Court
by the administrator, to which your orator, Matilda A. C. Griffith and
the said Martha M. Robinson were made defendants, and duly served
with process, and that at the April term, i8<?#, an order of said court
was made and entered of record, ordering the said administrator to
sell said lands to pay said allowances and all costs and charges of
said sale or so much as was necessary for that purpose; that there-
upon, on the first day of June, i%82, to save said real estate from sale
under said order and to preserve the same for said heirs, your orator
Matilda A. C. Griffith and the said Martha M. Robinson, and to pre-
vent further costs and expenses, your orator, Matilda A. C. Griffith
paid off the said allowances and costs in full, but that the said Martha
M. Robinson failed and refused to pay any part of the same, and her
pro rata share was paid by your orator, Matilda A. C. Griffith, the said
share amounting to the sum of five hundred dollars; that said Martha
M. Robinson, although requested, has refused to repay the same or
any part thereof. To the end therefore that the said Martha M.
Robinson may be required to repay the share paid for her to relieve
the land from the common charge, and that the same be made a lien
upon her interest in the said land, and that your orator may have such
other or further relief in the premises as the nature of the case may
require and to your honor shall seem meet according to equity and
good conscience, may it please your honor to grant unto your orators
the writ of summons in chancery, directed to the sheriff of said
county of Adams commanding him that he summon the defendant,
Martha M, Robinson, thereby commanding her to be and appear
before this honorable court on the first day of the next term thereof,
to be held at the court-house in Quincy, in said county, on the first day
of October, A. D. i%82, within and for the county of Adams aforesaid,
then and there to stand to and perform and abide such further order,
direction and decree therein as to your honor shall seem meet, accord-
ing to equity and good conscience.
And your orators will ever pray, etc.
Matilda A. C. Griffith.
A. G. Griffith.
Walter Scoggin, Solicitor.
454 Volume 5.
6349.
CONTRIBUTION.
6349.
VI. BETWEEN CO-DEVISEES AND Co-LEGATEES. 1
Form No." 63 4 9.*
Commonwealth of Massachusetts, Superior Court.
Bristol, ss. In Equity.
John Doe, plaintiff, )
against v Bill of Complaint.
Richard Roe f defendant. )
I. John Tomlinson died testate on the eleventh day of May, i8<!?5,
leaving a widow, Rachel Tomlinson, but no children. His will was
duly proved and allowed in the Probate Court for the county of
Bristol, on the fifteenth day of May, iS85.
II. By said will said John Tomlinson gave a house on Market
street in Fall River to the said Rachel; to the plaintiff his mill stock
and bank stock ; and to the defendant a house on Whipple street in
said Fall River.
III. The widow duly waived the provisions of the will, and on her
petition the portion of the real estate and personal estate to which
she was by law entitled, to wit, five thousand dollars in real estate in
fee, and five thousand dollars in personal estate absolutely, was duly set
1. For statutes relating to the subject
of contribution between co-legatees
and co-devisees see as follows:
Arizona. Rev. Stat. (1887), 1171.
Arkansas. Sand. & H. Dig. (1894),
7440, 7441.
Connecticut. Gen. Stat. (1888), 556.
Florida. Rev. Stat. (1892), 1935.
Indiana. Homer's Stat. (1896),
2568.
Maine. Rev. Stat. (1883), c. 74, 6.
Massachusetts. Pub. Stat. (1882), c.
127, 27-33.
Michigan. How. Anno. Stat. (1882),
5818, 5819, 5945-
Minnesota. Stat. (1894), 5920,
5928, 5932.
Montana. Code Civ. Proc. (1895),
2696.
New Jersey. Gen. Stat. (1895), p.
2373, 78.
North Carolina. Code (1883), 1534.
Ohio. Bates' Anno. Stat. (1897),
5973 et seq.
Rhode Island. Gen. Laws (1896), c.
203, g$ 25 et seq.
Tennessee. Code (1896), 3998.
For substance of sufficient complaint
see Cook v. Cook, 92 Ind. 398.
Contribution between Heirs. Allega-
tions that the plaintiff is an heir who
has been compelled to pay the debts of
his ancestor, after a deficiency in the
personal assets, and that the defend-
ants are co-heirs, are as effective in
making out a case for contribution as
are allegations that the parties are co-
devisees or co-legatees. Taylor v.
Taylor, 8 B. Mon. (Ky.) 419; Clowes v.
Dickenson, 5 Johns. Ch. (N. Y.) 235.
2. This form is adapted from the bill
of complaint which was filed in the
case of Tomlinson v. Bury, 145 Mass.
346. The allegation that the plaintiff
was forced to give up the property be-
queathed to him on account of the
wife's claim for dower (or the property
to which the statute entitles her) is, of
course, equivalent to an allegation that
the plaintiff was forced to abandon his
legacy to the claims of creditors. And
an allegation to the effect that the estate
of the testator was insufficient to pay
the debts without calling upon the
devisees or legatees is essential, and
without it the complaint is demur-
rable. A legatee who has been com-
pelled to pay the whole of a legacy is
entitled to no contribution from his co-
legatees if the estate was solvent inde-
pendent of their legacies, or if it became
insolvent by devastavit of the execu-
tor. Peeples ?'. Horton, 39 Miss. 406.
If, in a bill by a legatee against a co-
legatee for contribution, it appears that
the executor had sufficient funds origi-
nally to pay all the legacies, but that
after paying some of them he squan-
dered the residue of the fund and is
unable to pay the plaintiff's legacy, the
bill states no cause of action. Sims
v. Sims, 10 N. J. Eq. 158.
453
Volume 5.
6350.
CON TRIE UTION.
6350.
off and assigned to her. The real estate so set off and assigned was
the said house on Market street, which was devised to her and was
appraised at five thousand dollars, and the personal estate assigned
included all that bequeathed to the plaintiff. The house devised to
the defendant is the only property not so assigned to the widow.
IV. The result of the waiving of the provisions of the will by the
said Rachel Tomlinson and the assignment to her under her petition
of the aforesaid property, has been to deprive the plaintiff of all the
mill stocks and bank stocks bequeathed to him. Wherefore he
has a right to contribution from the defendant out of the real estate
devised to him; he has requested the defendant to make such con-
tribution, but he has refused and still refuses so to contribute.
The plaintiff prays:
That the defendant may be ordered to contribute of the property
devised to him such sum to the plaintiff as may be found just and
reasonable toward the legacy of which the plaintiff has been
deprived as aforesaid. John Doe,
by Jeremiah Mason, his Attorney.
VII. BETWEEN JOINT TORT-FEASORS. 1
Form No. 6 3 5 o , 2
1. Contribution between Joint Tort-
feasors. As a general rule, where one
of two joint tort-feasors has been com-
pelled to pay the whole damage, he can
recover no contribution from the other.
There are, however, exceptions to this
rule. Where the party who seeks con-
tribution acted honestly, neither know-
ing nor being presumed to know that
the act was unlawful, he may recover
contribution, and perhaps full indem-
nity. And where a joint liability is
imposed on several by inference of law,
as where the joint owners of a stage
coach are held liable for the negligence
of a driver, the one who is compelled to
pay the entire damage can recover con-
tribution from his fellows. 3 Am. and
Eng. Dec. in Eq., pp. 198-206; Bailey v.
Bussing, 28 Conn. 455; Nickerson v.
Wheeler, 118 Mass. 295; Ankeny
v. Moffett, 37 Minn. 109; Skerner v.
Spear, 92 N. Car. 148; Horbach v. Elder,
18 Pa. St. 33.
If the bill, declaration, petition or
complaint shows on its face that the
plaintiff acted either wilfully, knowing
the illegal nature of his action, or neg-
ligently, when he should have known
its nature, a demurrer will be sustained
in nearly all jurisdictions.
There are, however, a few states in
which statutes have been passed giving
wrong-doers in general a right of con-
tribution like that of other joint obligors.
See 3 Ga. Code (1895), 3916; Burns'
Anno. Prac. Code Mo. (1896), 1179;
W. Va. Code (1891), p. 861.
In Nickerson v. Wheeler, 118 Mass.
2t,5, the bill alleged in substance that
on a certain date one Thayer recovered
judgment against the New England
Lithographic Steam Printing Co. for
$3,290.92 damage and $33.89 costs;
that execution issued against the com-
pany, but was returned in no part
satisfied; that thereupon Thayer filed
his bill against the present plaintiff,
who was treasurer of said corporation,
and all the directors; that said officers
had not deposited any certificate with
city clerk of Boston as required by
statute, wherefore they were jointly
and severally liable for the debts of the
corporation; that said Thayer recovered
judgment against them and execution
was levied wholly on the property of
the plaintiff, whereby he was compelled
to pay $3,924.39; that the other defend-
ants in that suit, who were the de-
fendants to this bill, were liable to
contribute. The court granted the re-
lief prayed for. But see contra
Andrews v. Murray, 33 Barb. (N. Y.)
354; Baird v. Midvale Steel Works, 12
Phila. (Pa.) 255.
2. Missouri. Burns' Anno. Prac.
Code (1896), 1179.
456
Volume 5.
6350. CONTRIBUTION. 6350.
John Doe, plaintiff, \ In the Circuit Court of Barton County,
against v State.of Missouri.
Richard Roe, defendant. ) To the September Term, i897.
Plaintiff states that on the first day of May, iS97, Samuel Short
recovered a judgment in the Circuit Court of Barton county, in the
state of Missouri, against the plaintiff and the defendant, Richard
Roe, for the sum of one thousand dollars damages, for the wrongful
conversion by plaintiff and defendant of one McCormick reaper and
binder and traction engine, and costs of suit, amounting to one hun-
dred dollars; that on the first day of June, i897, plaintiff, in order to
avoid levy and execution on his property, paid off the said judgment
and costs in full with his own means, and on said first day of June
demanded of defendant, Richard Roe, his contributive portion of said
sum, amounting to five hundred and fifty dollars, but defendant refused
to pay said sum or any part thereof.
Wherefore, plaintiff demands judgment against defendant for said
sum of five hundred and fifty dollars, with interest from the first day
of June, i&97, and for other proper relief.
Jeremiah Mason, Attorney for Plaintiff.
457 Volume 5.
CONTRIBUTORY NEGLIGENCE
BY THOMAS E. O'BRIEN.
I. PLEA, 458.
II. ANSWER, 459.
CROSS-REFERENCES.
For Forms of Answers and Pleas setting up Matters of Defense by way
of Confession and Avoidance, generally, see the title CONFES-
SION AND AVOIDANCE, ante, p. 37 et seq., and the
GENERAL INDEX to this work.
For matters of Procedure, see 5 ENCYCLOPAEDIA OF PLEADING AND
PRACTICE, p. i et seq.
I. PLEA.
Form No. 6351 - 1
John Doe \ Jn Washington County Court>
against V September Term, A. D. i8>7.
Richard Roe. ) f
And the said defendant, by Daniel Webster, his attorney, comes and
1. Contributory negligence must be
specially pleaded in the nature of a con-
fession and avoidance. McDonald v.
Montgomery St. R. Co., no Ala. 161;
Union Pac. R. Co. v. Tracy, 19 Colo.
331. See also the title CONFESSION AND
AVOIDANCE, ante, vol. 5, p. 37.
For formal parts of pleas in any juris-
diction consult the title PLEAS.
For another form of plea setting up con-
tributory negligence see Form No.
4379, supra.
The replication also may set up con-
tributory negligence as a defense. For
the formal parts of replications, gen-
erally, see the title REPLICATIONS.
Negativing by Plaintiff Generally.
In some states plaintiff must negative
contributory negligence in his com-
plaint or petition.
Illinois. Foster v. Onderdonk, 54
111. App. 254; Calumet Iron, etc., Co. v.
Martin, 115 III. 358.
Indiana. Terre Haute St. R. Co. v.
Tappenbeck, 9 Ind. App. 422. A gen-
eral allegation of freedom from negli-
gence, however, is sufficient. Chicago,
etc., R. Co. v. Smith, 6 Ind. App. 262.
But when the facts show that there was
no contributory fault, it need not be
denied in the complaint. Cleveland,
etc., R. Co. v. Keely, 138 Ind. 600.
Maine. Buzzell v. Laconia Mfg.
Co., 48 Me. 113.
Michigan. Denman v. Johnston, 85
Mich. 387.
Rhode Island. Di Marcho v. Build-
ers' Iron Foundry, 18 R. I. 514.
Under Statute. In Maryland, in
State v. Baltimore, etc., R. Co., 77 Md.
489, it was held that under the code,
article 75, section 23, form 36, it is
necessary to aver in the declaration
that the person injured was using due
care at the time the injury was inflicted.
In Massachusetts, in Fuller v. Boston,
etc., R. Co., 133 Mass. 491, the court
seems to hold that in an action against
a railroad for personal injuries, under
the statutes (1874), chapter 372, sec-
tion 164, the declaration must aver that
at the time the injury complained of
458
Volume 5.
6352. CONTRIBUTORY NEGLIGENCE. 6352.
defends the force and injury, when, etc., and says that the said plain-
tiff ought not to have or maintain his aforesaid action thereof against
him the said defendant, because he says that before and at the time,
when, etc., the said defendant was driving in and along the said high-
way, the carriage of said plaintiff also being driven along said highway
and in the opposite direction to that in which the carriage of said
defendant was being driven; yet the said defendant says at the time
when, etc., that the carriage of the said plaintiff was driven and
managed in a negligent, improper and careless manner in said high-
way, and that being near the carriage of said defendant and by
reason of such careless, improper and negligent management, by
accident and by failure to use due and proper care in the manage-
ment thereof, and not through any default or negligence on the part
of said defendant, the said carriage of plaintiff was driven upon and
against the carriage of defendant, whereby the injuries in the said
declaration mentioned were sustained by the plaintiff. Wherefore
defendant says that whatever damage, if any, happened to said plain-
tiff or to his carriage was caused by said accident, and not by any
default or negligence of the defendant; which are the same supposed
trespasses in the said declaration mentioned. 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 fof his costs.
II. ANSWER.
Form No. 6352.
(Precedent in Missouri Pac. R. Co. v, Cornell, 30 Kan. 35.)'
[State of Kansas, ) In the District Court in and for the county
Anderson County. \ SS * and state aforesaid.
S. P. Cornell, plaintiff, ")
against I Answer
The Missouri Pacific Railway [
Company, defendant.
The defendant, The Missouri Pacific Railway Company, for answer
to plaintiff's petition, denies each, every and all the allegations in
said petition contained.
was received the plaintiff was in the burgh, etc., R. Co. . Burton, 139 Ind.
exercise of due care. 357.
Injustices' Courts. This rule held to 1. The court held in this case that
apply in justices' courts. Cincinnati, upon the introduction of evidence tend-
etc., R. Co. v. Stanley. 4 Ind. App. 364. ing to prove the facts alleged in the
Negligence of third persons need not be answer a question of contributory
negatived, except in cases where such negligence was presented and that
person is so identified with or under the the trial court committed error in re-
control or direction of the party injured fusing instructions directing the jury
as to be responsible for his acts. Nap- to consider the contributory negligence
panee v. Ruckman, 7 Ind. App. 361. of the plaintiff below.
An executor or administrator, in an ac- For other forma of anaweri setting up
tion for negligently causing the death contributory negligence as a defense
of decedent, need not negative contrib- see vol. 4. Forms Nos. 5054, 5055, 5056,
utory negligence on his part. Pitts- 5140 and 5715; also see Evans v. Lake
459 Volume 5.
6352.
CONTRIBUTORY NEGLIGENCE.
6352.
And for a further defense to said petition the defendant alleges] 1
that the plaintiff was guilty of negligence and carelessness con-
tributing directly to the injury complained of, in this, to wit: that
he permitted dead and dry grass and other combustible material to
be and remain in his orchard, and permitted a continuous body of
dry grass to extend from his orchard and connect with the adjacent
prairie and with the right-of-way of defendant's road; and that he
placed and caused to be placed around his apple trees large quanti-
ties of dry and combustible material, and carelessly and negligently
so permitted it to remain; and carelessly and negligently permitted
fires to come upon his premises; and thereby the injury complained
of was occasioned without the fault or negligence of the defendant.
[ The Missouri Pacific Railway Company \ Defendant.
By W. A. Johnson, Attorney.
(Verification^
Erie, etc., R. Co., 78 Fed. Rep. 783;
Freeman v. Engelmann Transp. Co., 36
Wis. 572. In the Freeman case last cited
the answer, among other things, alleged
" that the small boats were launched,
and that all passengers were invited
into and urged to take them; that some
passengers refused to go into the small
boats and wantonly and recklessly
stayed upon said steamer when it was
evident she must sink; that all the pas-
sengers who entered the small boats
were saved and ultimately reached the
land; and that if plaintiff's intestate
was drowned while on said steamer it
was because of his own carelessness
and recklessness in not complying with
the reasonable and proper requests of
the officers and crew to come into the
small boat, and in his reckless and
wanton determination to remain on
board of a sinking ship." It was held
that the averment set up in the answer
constituted a proper defense of con-
tributory negligence.
For formal parts of an answer in any
other jurisdiction consult the title AN-
SWERS IN CODE PLEADING, vol. i, p. 799.
Eeply may set up contributory negli-
gence as a defense. For the formal
parts of a reply in any jurisdiction see
the title REPLY.
1. The words enclosed by [ ] will not
be found in the reported case, but have
been added to render the form com-
plete.
2. See the title VERIFICATIONS.
460
Volume 5.
CONVERSION.
See the title TROVER AND CONVERSION.
CONVICTS.
BY THOMAS E. O'BRIEN.
I. DISCHARGE OF POOR CONVICTS, 461.
i. Application, 461.
a. Notice to District Attorney, 462.
3. Mandate for Production before Commissioner, 462.
4. Oath of Convict before Commissioner, 463.
6. Certificate of Discharge, 463.
II. CERTIFICATE OF VOCATION, ETC., OF CONVICT, 463.
III. OATH OF COUNTY CONVICT OF INABILITY TO PAY FINE, 464,
IV. INDICTMENT FOR CRUEL AND INHUMAN TREATMENT OF CON-
VICT, 465.
CROSS-REFERENCES.
For Form of Indictment against Convict for Setting Fire to Peniten-
tiary, see the title ARSON, vol. 2, p. 213.
For Forms of Actions on Bonds Given upon Hire of Convicts, see the
title BONDS, ETC. (ACTIONS ON), vol. 3, p. 570 et seq.
See also the title ESCAPE, and the GENERAL INDEX to this work.
I. DISCHARGE OF POOR CONVICTS. 1
1. Application.
Form No. 6353.*
United States of America, )
District of Columbia? \
1. Discharge of poor debtors in the make application in writing for dis-
different states, for forms in proceed- charge to any commissioner of the
ings relating to, consult the title POOR United States court in the district
DEBTORS. where he is imprisoned, setting forth
2. In Federal Courts. When a poor his inability to pay such fine or fine
convict sentenced by any court of the and costs. U. S. Rev. Stat. (2d ed.
United States to pay a fine or fine and 1878), 1042; D. C. Comp. Stat. (1894),
costs, whether with or without im- c. 55, 165.
prisonment, has been confined in prison 3. Statute applies to the District of
thirty days solely for the nonpayment Columbia, so held in Ex p. Norvell, 9
of such fine or fine and costs, he may Mackey (D. C.) 348.
461 Volume 5.
6354. CONVICTS. 6355.
United States ) Application for Discharge from Imprisonment under
against > the provisions of section 1042 of the Revised Stat-
John Doe. ) utes of the United States.
To James Hallett, a Commissioner of the United States for said
District :
I hereby make application for discharge from imprisonment in the
District jail, under the provisions of section 1042 of the Revised
Statutes of the United States; and in support thereof state that I
was sentenced to pay a fine of five hundred dollars and costs by the
Supreme Court of the District of Columbia; that I have been im-
prisoned for thirty days solely for nonpayment of fine and costs, and
that I am unable to pay the same.
John Doe, Applicant.
This tenth day of March, i8.
2. Notice to District Attorney.
Form No. 6354.'
( Venue and title of cause as in Form No. 6353.)
To Jeremiah Mason, United States Attorney, District of Columbia,
Washington, D. C. :
Notice is hereby given that application has this day been made
before fames Hallett, a commissioner of the United States for said
District, by John Doe, for a discharge from imprisonment in the jail
of said District, under the provisions of section 1042, Revised Statutes
United States, and that a hearing will be had upon said application
on the eleventh day of March, iS98, at ten o'clock in the forenoon, or
as soon thereafter as the case can be heard.
Oliver Ellsworth, Attorney for John Doe.
Dated this tenth day of March, i898.
3. Mandate for Production before Commissioner.
Form No. 6355.
United States of America, )
District of Columbia.
The United States of America, to the Warden of the District Jail,
Greeting:
Whereas, application has this day been made before me, James
Hallett, a commissioner of the United States for said District, by
John Doe, for a discharge from imprisonment in the jail of said Dis-
trict, under the provisions of section 1042 of the Revised Statutes of
the United States.
This is therefore to command you to produce the body of said
John Doe before said commissioner forthwith.
To the marshal of said District to execute.
1. Notice must be given to the district the matter. U. S. Rev. Stat. (2d ed.
attorney of the United States, who may 1878), 1042; D. of C.Comp. Stat. (1894),
appear, offer evidence and be heard in c. 55, 163.
462 Volume 5.
6356. CONVICTS. 6358.
In testimony whereof, I hereunto set my hand at my office in
Washington, in said District, this tenth day of March, iS98.
James Hallett,
(SEAL) United States Commissioner for the District of Columbia.
4. Oath of Convict before Commissioner.
Form No. 6356.'
( Venue and title of cause as in Form No. 6358. )
District of Columbia, to wit:
I, John Doe, do solemnly swear that I have not any property, real
or personal, to the amount of twenty dollars, except such as is by law
exempt from being taken on civil precept for debt by the laws of the
District of Columbia; and that I have no property in any way con-
veyed or concealed, or in any way disposed of, for my future use or
benefit. So help me God.
John Doe.
Subscribed and sworn to before me this tenth day of March, i898.
James Hallett,
United States Commissioner for the District of Columbia.
5. Certificate of Discharge.
Form No. 6357.*
{Venue and title of cause as in Form No. 635S).
It appearing to the commissioner iha.t John Doe, the above named
defendant, has been imprisoned in the jail of the District of Columbia
for the period of thirty days, solely for the nonpayment of a fine and
costs adjudged against him by the Supreme Court of the District of
Columbia, and that he is unable to pay the same, and has complied
with all the requirements of law.
It is therefore ordered that the said John Doe be discharged from
further imprisonment and go hence without delay.
James Hallett,
United States Commissioner for the District of Columbia.
This eleventh day of March, iS98.
II. CERTIFICATE OF VOCATION, ETC., OF CONVICT.
Form No. 635 8. 3
1. Statute prescribes this form of oath in a state prison, before passing the
as the one to be administered. U. S. sentence, to ascertain by examination
Rev. Stat. (2d ed. 1878), 1042; D. C. of such convict on oath, and, in addition
Comp. Stat. (1894), c. 55, 163. to such oath, by such other evidence as
2. A certificate of discharge shall be can be obtained, the business, if any,
given to the jailer or keeper of the jail in which such convict has been engaged
by the commissioner. U. S. Rev. Stat. prior to such arrest and conviction,
(2d ed. 1878), 1042; D. C. Comp. Stat. whether such convict had learned and
(1894), c. 55, 163. practiced any mechanical trade, if so
3. Minnesota. It shall be the duty the nature of such trade and length of
of the court in which any person shall time that same has been followed, and
be convicted of any offense punishable the clerk of the court shall enter the
468 Volume 5.
6359. CONVICTS. 6359.
State of Minnesota, \ District Court, Fourth Judicial District.
County of Hennepin. \ SS ' General Term, December, i87.
No. 110. The State of Minnesota }
against > Indictment for Burglary.
Richard Roe, defendant. )
I, Calvin Clark, clerk of the District Court in and for the county
of Hennepin, state of Minnesota, do hereby certify, that after the
above named defendant Richard Roe had been convicted in said
court of the crime of burglary, and before passing sentence upon
him, the court examined the said defendant under oath, and took the
further evidence of William West and Thomas Short as to the busi-
ness in which said defendant had been engaged, or the mechanical
trade which he had learned and practiced prior to his arrest and con-
viction; and upon such evidence the court ascertained and decided
the facts to be that the above named defendant is by trade a black-
smith, and that for the five years next previous to his arrest for the
crime of which he now stands convicted he practiced said trade in
the city of St. Paul in the state of Minnesota.
Witness my hand and the seal of said court this twenty-second day
si December, i807.
(SEAL) Calvin Clark, Clerk.
III. OATH OF COUNTY CONVICT OF INABILITY TO PAY FINE.
Form No. 6359.'
The State of Texas, \
? -f
County of Freestone.
Before me, the undersigned authority, personally appeared John
Doe, who, being by me duly sworn, on oath says, that in the County
Court of Freestone county, on the tenth day of February, i85, he was
fined the sum of ninety-two dollars; and affiant further says that he is
not able to pay said fine and costs, or any part thereof; and failing to
pay the same he is now in the custody of the sheriff of Freestone
county, and that he makes this affidavit that he may be hired out
under the law governing the hiring of county convicts.
John Doe.
Subscribed and sworn to before me this twenty-fifth day of February,
1 80*.
Edward L. Walker, County Judge.
facts as ascertained and decided by the art. 856, providing that when a defend-
court on the minutes thereof and shall ant is convicted of a misdemeanor and
deliver a certificate fully stating the his punishment is assessed at a pecu-
facts so ascertained to the sheriff of the niary fine, if he make oath in writing
county, who shall cause same to be that he is unable to pay the fine and
delivered to the warden of the state costs adjudged against him, he may be
prison at the same time that such con- hired out to manual labor or be put to
vict is committed to the care of said work in the manual labor workhouse
warden pursuant to his sentence. Stat. or on the manual labor farm or public
(1894), 7491. improvements of the county, etc.
1. Texas. Code Crim. Proc. (1895),
464 Volume 5.
6360. CONVICTS. 6360.
IV. INDICTMENT FOR CRUEL AND INHUMAN TREATMENT OF CONVICT.
Form No. 6360.'
In the Circuit Court for the Third Judicial Circuit of Florida.
Suwannee county, November term, in the year of our Lord one
thousand eight hundred and ninety-seven.
/ Indictment for Cruel and Inhuman Treatment of
D i j n C Convict.
Richard Roc. )
In the name and by the authority of the state of Florida, the grand
jurors of the state of Florida, impaneled and sworn to inquire and
true presentment make in and for the body of the county of Suwannee,
upon their oaths do present that Richard Roe, of the county of Suwan-
nee and state of Florida, on the first day of February, in the year of our
Lord one thousand eight hundred and ninety-seven, in the county and
state aforesaid, did unlawfully, feloniously, cruelly and inhumanely
treat one John Doe, then and there being a prisoner, duly convicted,
sentenced and committed to the state prison for a term of years,
according to the laws of the state of Florida, and contracted for as pro-
vided by the laws of the state of Florida, and employed under said
contract by him the said Richard Roe, by unlawfully, knowingly, wil-
fully, cruelly, inhumanely, feloniously and without good cause refusing
and neglecting to provide him the said John Doe, with adequate allow-
ance of proper food and suitable clothing, by reason of which neglect
and refusal he the said John Doe, being exposed to the cold and
inclemency of the weather, did suffer greatly and his health and life
were greatly endangered; against the peace and dignity of the state of
Florida.
Daniel Webster, State's Attorney
for the Third Judicial Circuit of the State of Florida.
1. Florida. Rev. Stat. (1892), 3076. wise, or shall wilfully or negligently
If any contractor or guard, or any agent permit any prisoner to escape, he shall
or employee of such contractor, or any be punished by imprisonment in the
other person, shall be guilty of any state prison not exceeding ten years or
cruel or inhuman treatment to any pris- by fine not exceeding five thousand dol-
oner contracted for, by neglect or other- lars.
5 E. of F. P, 30, 465 Volume 5
COPYRIGHT. 1
BY JOSEPH CREEDEN.
I. PROCEEDINGS TO PREVENT INFRINGEMENT, 466.
i. Affidavit in Support of Motion for Preliminary Injunction, 466.
. Bill to Restrain Infringement, 469.
a. Of an Article in an Encyclopaedia, 469.
b. Of a Book, 477.
c. Of a Dramatic Composition, 485.
d. Of an Engraving, 489.
3. Answer Denying Infringement, 492.
4. Replication, 496.
6. Decrees, 496.
a. For Permanent Injunction, 496.
b. For Permanent Injunction and Directing Reference to
Master, 498.
6. Injunction, 499.
II. ACTION FOR STATUTORY PENALTIES, 500.
1. On Copies of Infringing Photograph, 500.
2. For Falsely Imprinting Notice, 502.
III. ACTION FOR VIOLATION OF COMMON-LAW RIGHT IN UNPUB-
LISHED MANUSCRIPT, 506.
CROSS-REFERENCES.
For matters of Procedure, see the title COPYRIGHT, 5 ENCYCLO-
PAEDIA OF PLEADING AND PRACTICE, p. 16.
I. PROCEEDINGS TO PREVENT INFRINGEMENT.
1. Affidavit in Support of Motion for Preliminary
Injunction. 2
Form No. 6361.
(Precedent in Ladd v. Oxnard, 75 Fed. Rep. 705. ) 3
United States of America, District of Massachusetts.
On this sixth day of February, A. D. iS96, before me personally
1. For statutes relating to copyright 3. It was held in this case that, where
see U. S. Rev. Stat. (1878), 5) 4958- a clear infringement of a copyrighted
4971; U. S. Rev. Stat. (Supp. 1891), p. compilation of credit ratings and the
15, c. 301; 26 U. S. Stat. at Large, p. financial standing of persons engaged
1106, c. 565. in a particular line of business is shown,
2. For forms of affidavits, generally, a preliminary injunction will only
consult the title AFFIDAVITS, vol. i, p. be granted in the event of the failure
548. of defendant to file a bond in a specified
466 Volume 5.
6361. COPYRIGHT. 6361.
appeared David M. Ladd, who, being by me duly sworn, deposes and
says that he is one of the complainants in the above entitled action;
that he has during the past seven years had personal supervision and
direction of the compiling, preparation, revision and transcribing of
the manuscript copy of each of the several editions of the "United
Mercantile Agency Credit Ratings for t/te Marble, Granite and Stone
Trade"-, that during that period his firm has continually had as sub-
scribers, with one or two exceptions, all the leading manufacturers,
quarriers, and wholesalers of marble and granite as used for both
monumental and building purposes; that his firm and its representa-
tives and agents have repeatedly consulted said subscribers with the
aim and purpose in view of securing items of experience that would
be of assistance in the revision and correction of said several editions
of said Credit Ratings, and that from personal experience he has
found it a matter of impossibility and impracticability to secure
from said individual subscribers or members of the wholesale trade,
information, corrections, or changes of reliability or value to aid
him in connection with the revision of said work, except as may have
related to the particular customers or patrons of such individuals or
concerns, which would necessarily and naturally be of limited num-
ber and a very small minority of all the firms and parties engaged in
the various lines in the several states as included in said work. Said
deponent further says that he had personal charge and supervision
of the first edition of said Credit Ratings, issued \njune, iSOO, and
that neither the compilation of that nor any of the several editions
of the same work issued since that date have been or were compiled
or revised from town or city directories or trade lists, but that the
information and matter contained in said books were secured through
special correspondents, agents and representatives in all sections of
the United States and Canada, and from direct correspondence with
the retail dealers in marble, granite dnd stone in the various towns
and cities of the entire country; that the original answers to such
direct correspondence with dealers, and the revised lists as sent in
annually by said representatives, agents and special correspondents,
are now on file in the office of said complainants, and, in conse-
quence, that if any instances occur where errors and misprints appear
in both complainants' and respondents' books it cannot be explained
or excused on the ground that both used the same common sources
of information, unless it can be shown that complainants' agents and
representatives and special correspondents also acted in the same
capacity for said respondents. The deponent further says that he
has made a careful comparison between the work issued by his firm
in June, i8R, and the respondents' book, and that he finds that cleri-
cal errors and misspellings of his own making from the printed cards
and letter headings, and pen signatures of various dealers, are repro-
penal sum, conditioned for the payment obtain much circulation to the preju-
of any damages ultimately decreed dice of complainant. See also the sub-
against him; the court saying that pub- stance of a sufficient affidavit in Thomas
lications of this character depend for v. Lennon, 14 Fed. Rep. 850.
acceptance on the reputation of the For defendant's affidavits in oppo-
compilers and publishers, so that de- sition to the motion see Ladd v. Ox-
fendant's book would presumably not nard, 75 Fed. Rep. 719 et seq.
467 Volume 5.
6361. COPYRIGHT. 6361.
duced in said respondents' book without change; that the names of
the parties who were never engaged in the marble, granite or stone
line, but whose names were inserted in Credit Ratings as detectives
(or, in other words, for the purpose of enabling said complainants to
discover infringements, should any be attempted), are also reproduced
in the book of said respondents; that the names of towns correctly
inserted in every standard atlas and gazetteer, but misspelled through
error by said complainants in their books, also appear with like mis-
spelling in the book of said respondents; that names wrongfully
classified under towns of the same name in different states also
appear reproduced without correction in said respondents' book,
some of which are shown in the lists or tables herewith appearing,
and further shown by the several letters and communications on filt
herewith, marked Exhibits Al to Z, inclusive, and numbers 1 to 15,
inclusive. The deponent further says that over ten thousand correc-
tions and changes were made on the i8&| edition of Credit Ratings,
as revised and issued \\\ June, i8$5, while said Blue Book, issued by
respondents, in November, \W5, is almost identical with the June
iS94 edition of Credit Ratings, issued seventeen months previously by
the complainants, except that a few corrections were made in Penn-
sylvania and one or two other states. The deponent further says
that on the states of Alabama, Arizona, Arkansas, California, Colorado,
Connecticut, Delaware, District of Columbia, and Georgia the substance
of the 18.94 book of Credit Ratings is reproduced in the Blue Book,
with onlyyfrv or six alterations and one addition: while in the iS95
edition of Credit Ratings, issued seven months in advance of the Blue
Book, several hundred changes, additions and discontinuances were
made in the same states. The deponent further says that no edition
of the Credit Ratings issued to date has contained less than eight
thousand changes from the book of the previous year, and that no
two editions of Credit Ratings, published in different years, bear such
close resemblance or show such uniformity in composition and
make-up as do the Blue Book of the respondents and the iS94 Credit
Ratings issued by complainants. The deponent further says that
each year since i889 he has personally devoted two-thirds of his entire
time, working long hours and frequently evenings in the revision of
this work, constantly employing, during that period, three assistants
in writing and mailing correspondence and lists for revision. The said
deponent further says that, in such comparison of said Blue Book
with said Credit Ratings of iS94 as he has been able to make (which
has been thorough in the above mentioned states), he finds the simi-
larities given in said lists or tables hereinafter appearing, as to the
states of Alabama, Arizona, Arkansas and California, and says that
the same similarity appears as to the states of Colorado, Connecticut,
Delaware and Georgia: and from his examination of other states the
deponent believes that a further specification would be simply to
recopy both of said books, except that some changes appear in the
states of Pennsylvania and Massachusetts. In the said list or table
hereinafter appearing, the deponent has in some instances added,
after the word "Note," a few words in explanation, and that the
word " Note " and explanation following should not be taken as
468 Volume 5.
6362.
COPYRIGHT.
6362.
appearing in either of said books. And the deponent further says
that the following are the letters, characters and numerals and their
respective significations, as appearing in the said Blue Book and said
Credit Ratings: {Here follows a list setting out the similarities in the
publications of plaintiff and defendant?)
Ending with Wyoming, respondents follow complainants' classifica-
tion in making up the Canadian provinces, which is not alphabetical as
in other publications, but a style original with, and peculiar to, com-
plainants.
David M. Ladd.
Sworn to February 6, iS96.
2. Bill to Restrain Infringement. 1
a. Of An Article in an Encyclopaedia.
Form No. 6362."
Circuit Court of the United States for the Southern District of New
York. In Equity.
To the Honorable the Judges of the Circuit Court of the United States
for the Southern District of New York, sitting as a Court of
Equity:
1. For the formal parts of a bill in
equity in any particular jurisdiction
consult the title BILLS IN EQUITY, vol. 3,
p. 417. For the formal parts of a com-
plaint or petition in any particular ju-
risdiction consult the title COMPLAINTS,
vol. 4, p. 1019.
2. This bill is copied from the records
in the case of Black z/. Henry G. Allen
Co., 42 Fed. Rep. 618. To this bill the
defendants demurred on the following
grounds:
I. That said bill of complaint shows
no substantial right or equity in or on
behalf of said complainants nor any of
them.
II. That the alleged verification of
said bill of complaint is evasive and
deceptive, and insufficient to support a
bill praying for the extraordinary rem-
edy of injunction.
III. That the acts of defendant al-
leged in said bill of complaint are not
contrary to law.
IV. That said bill of complaint is
uncertain and contradictory in its alle-
gations of the alleged rights of James
T. Black, Francis Black, Adam W.
Black and Alexander B. McGlashen, it
not appearing whether the said com-
plainants claim as co-owners in the
alleged copyright or that they are mere
licensees thereunder.
V. That it does not appear that the
alleged agreement between Walker and
the complainants James T. Black,
Francis Black, Adam W. Black and
Alexander B. McGlashen, and under
which the said complainants claim
title, was in writing or embodied in
any instrument in writing.
VI. That it is not averred in said bill
of complaint that any right of the al-
leged authors to copyright the alleged
copyright work has ever been assigned
in writing to the complainants, or any
of them.
VII. That the charge of infringement
and of invasion of the alleged rights of
complainants in the bill of complaint
contained is not made upon the knowl-
edge of any person whatever.
VIII. That the said bill of complaint
contains no allegations, as of matters
of fact, which, if true, would show
that the ownership of any copyright,
real or alleged, upon the work entitled
" United States, Part III, Political Ge-
ography and Statistics," is vested in the
complainants James T. Black, Francis
Black, Adam W. Black and Alexander
B. McGlashen, or any of them.
IX. That the bill of complaint does
not aver that any substantial or ma-
terial injury hath occurred to the com-
plainants, or any of them, by reason of
the alleged acts of defendant.
X. That it does not appear from the
bill of complaint that any profit hath
accrued to the defendant from the al-
469
Volume 5.
6362. COPYRIGHT. 6362.
James T. Black?- Francis Black, Adam IV. Black and Alexander B.
McGlashen, all of the city of Edinburgh, Scotland, and all of whom are
subjects of Her Majesty the Queen of Great Britain and Ireland, and
all of whom are aliens, and who are copartners engaged in business
as publishers at the city of Edinburgh under the firm name of Adam
Sr* Charles Black, and Francis A. Walker, of the city of Boston, in the
county of Suffolk, and state of Massachusetts, and a citizen of said
state, and now, and at the time of, and at all times since, the taking
of the copyright hereinafter mentioned, a citizen of the United States, 2
bring this their bill of complaint against the Henry G. Allen Company,
a corporation organized and existing under and by virtue of the laws
of the state of New York, and having its principal place of business
at the city of New York, in said state of New York.
And thereupon your orators complain and say as follows, to wit:
The said firm of Adam 6^ Charles Black, your orators aforesaid, are
the publishers of a certain work entitled " The Encyclopedia Britannica,
Ninth Edition." The said firm of Adam &> Charles Black, at the
time of the making of the agreement hereinafter mentioned, consisted
of your orators James T. Black, Francis Black and Adam W. Black;
and your orator Alexander B. McGlashen became a partner at a later
date ; and the present firm of Adam & Charles Black now hold and
enjoy all the rights of their predecessors in respect of the said "Ency-
clopcedia Britannica " and the said agreement and the copyright here-
inafter mentioned, all the said rights of their predecessors having
been vested in them according to law.
Your orators show that the said ^^ Encyclopaedia Britannica " is a
well known work, of standard value and character, eight editions of
which had been published, and the ninth edition of which was under-
taken and has been completed, printed and published at great
expense by said Adam 6 Charles Black. The said ninth edition of
the "Encyclopedia Britannica," so printed and published, is made up
leged acts of defendant in said bill administration in the state where suit
complained of. is brought is demurrable. If the bill,
XI. That for the matters and things however, avers simply that plaintiff
complained of complainants have a is administrator, the objection can be
full, adequate and complete remedy at taken only by plea or answer. Black
law. v. Henry G. Allen Co., 42 Fed. Rep.
But the demurrer was overruled and 618.
the complaint sustained at every point. Holder of Legal Title. The holder of
1. Parties Plaintiff Assignee. The the legal title may sue, although the
assignee of a copyright may sue for beneficial ownership be in another,
infringement, and the author need not Hanson v. Jaccard Jewelry Co., 32 Fed.
be joined as co-complainant. Roberts Rep. 202.
v. Myers, 13 Month. L. Rep. 396. 2. Allegation of Citizenship. An aver-
Author and Publisher. The author ment "that your orator at all times
and publisher may sue jointly in some hereinafter stated was and still is a
cases, as where the book is prepared by citizen of the United States and a resi-
one of the plaintiffs and all the plain- dent therein, residing in the city, county
tiffs caused the book to be published and state of New York" fairly meets
for their joint benefit. Stevens v. an objection taken by demurrer that
Wildy,ig L. J. Ch. 190. the bill does not show that complain-
Foreign Administrator, A bill by a ant at the time of producing the copy-
foreign administrator which shows on righted article was a citizen of the
its face that the administrator had United States or a resident therein,
never taken out ancillary letters of Falk v. Schumacher, 48 Fed. Rep. 222.
470 Volume 5.
6362.
COPYRIGHT.
6362.
of articles or books, each of which is, in a large number of instances,
a complete and independent book. None of the articles or books
contained in the tu>enty-thirdvo\\ime of said "Encyclopedia Britannica,"
hereinafter referred to, with the exception of the copyrighted book
hereinafter referred to, entitled "United States, Part III, Political
Geography and Statistics" and two other books or artiales, have been
copyrighted in the United States.
And your orators further say that heretofore, and before the thir-
teenth day of February, iS88, your orator, said Francis A. Walker, was
then a citizen of the United States and a resident of the city of
Boston, in the county of Suffolk, and state of Massachusetts, was the
author of a certain book entitled ''United States, Part III, Political
Geography and Statistics" the copyright of which book was by him, the
said Walker, duly secured according to the provisions of the statute
of the United States relating to copyrights; that is to say, the said
Walker, being the author of the said book entitled ''United States,
Part III, Political Geography and Statistics" and a citizen of the United
States and resident therein, did print and publish the same and did,
before the publication thereof, deposit in the mail addressed to the
librarian of Congress, Washington, District of Columbia, a printed
copy of the title of said work, and did, on the thirteenth day of
February, A. D. iS88, deliver at the office of the librarian of Congress
at Washington, District of Columbia, 1 a printed copy of the title of
said book, and did also, within ten days 2 from the publication of said
1. Mailing and Deposit of Title Aver-
ment in Disjunctive. An averment that
"before the publication * * * your
orator * * * delivered at the office of
the librarian of Congress, or deposited
in the mail, addressed to the librarian
of Congress at Washington, D. C., a
printed copy of the title of said photo-
graph, * * * and * * * also within ten
days from the publication thereof * * *
delivered at the office of the librarian of
Congress, or deposited in the mail, ad-
dressed to the librarian of Congress at
Washington, D. C., two copies," is am-
biguous and tenders no issue, and is
not a sufficient averment of compliance
with the statutory requisites. Falk v.
Howell, 34 Fed. Rep. 739.
Variance between Title Deposited and
that Published. Where the bill showed
that the title of a play deposited was
" Under the Gaslight, a Romantic
Panorama of the Streets and Homes of
New York," and the play was pub-
lished as " Under the Gaslight, a
Totally Original and Picturesque
Drama of Life and Love in These
Times, in Five Acts," it was held that
there was no material variance, and
that the title of the play, within the
meaning of the statute, was "Under
the Gaslight, " that being the title that
would be given it by the public, the
accompanying words being mere mat-
ter of description and not properly part
of the title. Daly v. Webster, 56 Fed.
Rep. 483-
Where the bill shows that the title
deposited was "An Outline of the
Political and Economic History of the
United States, with Maps and Charts.
I. History and Constitution. By Alex-
ander Johnson, M. A. II. Population
and Industry. By Francis A. Walker,
LL.D.," and the title of one of the
published books deposited to complete
the copyright was "United States.
Part III. Political Geography and
Statistics. Copyright, 1888, by Francis
A. Walker," it was held that the vari-
ance would not render the copyright
invalid against one not claiming to be
deceived. Black v. Henry G. Allen Co.,
56 Fed. Rep. 764.
2. Copies, When Deposited. 26 U. S.
Stat. at Large, p. 1107, $5 3, amending
U. S. Rev. Stat. (1878), 4956, requires
two copies of the article copyrighted to
be delivered at the office of the librarian
of Congress at Washington, District of
Columbia, or deposited in the mail
within the United States, addressed to
the librarian of Congress at Washing-
ton, District of Columbia, not later than
471
Volume 5.
6362.
COPYRIGHT.
6362.
book, which publication was by him, the said Walker, made in the
United States, deposit in the mail addressed to the librarian of Con-
gress at Washington, District of Columbia, and did deliver at the
office of the librarian of Congress at Washington, District of Columbia,
two copies of said book, 1 each of which copies so deposited in the mail
was a complete printed copy of said book of the best edition issued, and
also give notice and information of the copyright thereof having been
by him secured by inserting in the several copies of every edition
published, on the title-page thereof, the following words, to wit:
" Copyright 1888, by Francis A. Walker." 2 And the said Walker duly
the day of the publication thereof, in
this or any foreign country.
1. Deposit of Copies with Librarian.
It must be directly averred that two
copies of the book were deposited in the
office of the librarian of Congress
within ten days (see supra, note 2,
p. 471) after publication, and an aver-
ment that a printed title of the book was
furnished to the librarian, and that
" thereafter, within the time and in the
manner prescribed by law, your orator
did all the things required by law to be
done in order to secure to himself the
full enjoyment of all rights and privi-
leges granted by the laws of the land
governing copyright," is insufficient.
Burnell v. Chown, 69 Fed. Rep. 994.
But it need not be averred that the book
was published within a reasonable time
after the deposit of the copy of the title,
where it is alleged that the plaintiff de-
posited, within ten days (see supra, note
2, p. 491) after publication, in the
librarian's office at Washington, two
copies of the book. Scribner v. Henry
G. Allen Co., 49 Fed. Rep. 854.
Where the bill shows that sheets or
pages containing the separate article
by an American author were taken from
the bound volume of a foreign en-
cyclopaedia and deposited with the li-
brarian, a substantial compliance with
the provisions of the statute is shown.
Black v. Henry G. Allen Co., 56 Fed.
Rep. 764. And so of a bill showing
that two copies of the copyrighted
photograph were mailed to the librarian
before publication, but within ten days
(see supra, note 2, p. 471) thereof.
Falk v, Donaldson, 57 Fed. Rep. 32.
2. Inserting Notice of Copyright Gen-
erally. No person shall maintain an
action for the infringement of his copy-
right unless he shall give notice thereof
by inserting in the several copies of
every edition published, on the title-
page or the page immediately following
it, if it be a book, or if a map, chart, etc.,
by describing upon some portion of the
face or front thereof, or on the face of
the substance on which the same shall
be mounted, the following words: " En-
tered according to act of Congress, in
the year iSp*?, by John Doe, in the office
of the Librarian of Congress, at Wash-
ington." U. S. Rev. Stat. (1878),
4962. And by U. S. Rev. Stat. (Supp.
1891), p. 15, c. 301, it is provided that
the following words may be used at the
option of the person taking out the
copyright, to wit: "Copyright, \%q8, by
John Doe." And a bill which does not
aver that the plaintiff inserted such
words on the title-page or page follow-
ing is fatally defective. Thompson v.
Hubbard, 131 U. S. 123 ; Trow City
Directory Co. v. Curtin, 36 Fed. Rep.
829; Chicago Music Co. v. J. W. Butler
Paper Co., 19 Fed. Rep. 758; Parkinson
v. Laselle, 3 Sawy. (U. S.) 330; and see
also Jollie v. Jaques, I Blatchf. (U. S.)
618; Wheaton v. Peters, 8 Pet. (U. S.)
591-
In Copy Deposited in Library of Con-
gress. A copy of the work deposited in
the library of Congress need not con-
tain any notice of the copyright. Os-
good v. Aloe Instrument Co., 69 Fed.
Rep. 291.
Requisites of Notice Name. The
law requires that the name of the per-
son by whom the book is copyrighted
shall be stated, and in consequence a
notice in the following words and
figures, to wit: " Copyright, 1897. All
rights reserved," was held insufficient.
Osgood v. Aloe Instrument Co., 69 Fed.
Rep. 291.
A notice which gives the surname of
the proprietor as well as the initial
letters of his Christian name is suffi-
cient. Burrow-Giles Lithographic Co.
v. Sarony, in U. S. 53; Sarony v. Bur-
row-Giles Lithographic Co., 17 Fed.
Rep. 591. And a notice which gives
the surname alone is sufficient unless
it is shown that there is someone else
472
Volume 5.
6362. COPYRIGHT. 6362.
complied with and fulfilled all the other requirements and provisions
of the statutes in such case made and provided, and the librarian of
Congress did, on the thirteenth'&ay of February. iSS8, record the name
of the said book entitled as aforesaid, " United States, Part III,
Political Geography and Statistics" and there was granted to the said
Walker a copyright for the term of twenty-eight years from the
thirteenth day si February, \?>88, and the said Walker became entitled
to and did acquire the sole liberty of printing, reprinting, publishing,
completing, copying, executing and vending the said copyrighted
book for the said term of twenty-eight years from the thirteenth day
of February, 1888, which copyright still continues and remains in
full force and effect.
And your orators further say that your orator, the said Francis A.
Walker, having obtained the said copyright in pursuance of law, did,
by an agreement made on or about the first day of April, iS88, and
before the infringement hereinafter complained of, for a good and
valuable consideration, assign and transfer 1 to your orators constitut-
ing the firm of Adam &* Charles Black an interest in said copyright:
that is to say, the said Walker did assign and transfer to your orators
constituting the firm of Adam 6" Charles Black the sole and exclu-
sive right and liberty of printing, reprinting, publishing, copying and
vending during the whole term of the said copyright, the said book
entitled " United States, Part III, Political Geography and Statistics,"
in connection with and as a part of their said Encyclopaedia designated
"Encyclopedia Britannica, Ninth Edition," and not otherwise, the
said Walker retaining the right to print, publish, copy and vend the
said copyrighted book in every form and manner, other than as a part
of said "Encyclopedia Britannica."
And your orators say, that if the said Francis A. Walker did not
by the said agreement made on or about the first day of April, iB88,
of the same name. Burrow-Giles Litho- cient: "1889, copyrighted by B. J.
graphic Co. v. Sarony, in U. S. 53; Falk, N. Y." Falk v. Schumacher, 48
Bolles v. Outing Co., 45 U. S. App. Fed. Rep. 222.
449. " Copyright, 1893, by Bolles, Brook-
The name" Photographische Gesell- lyn." Bolles v. Outing Co., 45 U. S.
schaft," being the trade name created App. 449.
by complainant and extensively used " Copyright entered according to act
by him in his business, was held to be of Congress, 1889, by F. C. Hefel, Civil
a sufficient designation of the person Engineer." Hefel v. Whitely Land Co.,
taking out the copyright. Werck- 54 Fed. Rep. 179.
meister v. Springer Lithographing Co., 1. Description of Assignment. It was
63 Fed. Rep. 808. objected that it did not appear that the
Residence. The residence of the assignment between the author and the
party is not required to be stated Messrs. Black was in writing, but it
Burrow-Giles Lithographic Co.
Sarony, in U. S. 53; Werckmeister v
Springer Lithographing Co., 63 Fed
Rep. 808; Black v. Henry G. Allen Co.
was held that when all the legal and
equitable owners are joined it is un-
necessary to state the formalities or
mode of conveyance by which the
42 Fed. Rep. 618. equitable interests became vested in the
Date. The abbreviation " '94." rep- co-complainants, and if the owner of a
resenting the year, has been held suffi- legal title is a complainant it is im-
cient. Snow v. Mast, 65 Fed. Rep. material whether the equitable owners
995. became vested by an instrument in
Sufficient Notices. The following writing or by parol. Black v. Henry
forms of notice have been held suffi- G. Allen Co., 42 Fed. Rep. 618.
473 Volume '.
6362. COPYRIGHT. 6362.
assign and transfer to your orators constituting the firm of Adam &
Charles Black, an interest in said copyright, the said agreement was
an exclusive and irrevocable license to your orators constituting the
firm of Adam 6 Charles Black, giving and granting them, and by
which they acquired, the sole and exclusive right and liberty of
printing, reprinting, publishing, copying and vending, during the
whole term of said copyright, the said book entitled " United States,
Part III, Political Geography and Statistics" in connection with, and
as a part of, their said twenty -thirdvo\\\mz of their said " Encyclopedia
Britannica, Ninth Edition." And your orators aver that your orators
constituting the firm of Adam & Charles Black acquired by the said
agreement an equitable interest in said copyright which is substan-
tially the same whether the said agreement was and should be held
to be an assignment and transfer of an interest in said copyright or
an exclusive license to use the subject of the said copyright as part
of said volume of said. Encyclopedia*
And your orators aver that your orators who constitute the firm
of Adam & Charles Black have now, and have had since the making
of said agreement, an equitable interest in said copyright, and have
had the exclusive right of printing, publishing and vending said copy-
righted book as part of their said Encyclopedia, and that they, your
orators who constitute said' firm, are greatly and directly injured
by the infringements hereinafter complained of, and are equitably
entitled to receive the profits which have been diverted from them by
the acts of the said The Henry G. Allen Company, hereinafter set forth
and complained of, and an account of which is hereinafter prayed for.
And your orators constituting the firm of Adam 6" Charles Black,
after the said copyright had been taken by said Walker, exercised
their rights in the premises and made use of said copyrighted book,
and printed and sold the same in connection with, and as part of,
their twenty-third volume of their said Ninth Edition of the " Encyclo-
pedia Britannica" and continue so to use said copyrighted book ; and
the right so to use the same is of great value and importance to them.
And your orators say that the whole of said copyright and all the
privileges of every nature and description relating thereto, with the
exception of the right to use the subject thereof in said Encyclopedia,
has always remained and continued to be the property of said Walker.
And your orators aver that they are now well seised of said copy-
right, and are the owners thereof, and that the same is of great value
and importance to them, and that they have the right to enjoy all
the privileges secured and intended to be secured thereby; and that
they now have, and have always had, since said copyright was
obtained, copies of said copyrighted book exposed for sale, and that
the public have been supplied with the same to their benefit and
advantage and the profit of your orators. 2
1. Alternative Conclusions. It was to state the facts and to then state the
objected that this plea was uncertain conclusions therefrom in an alternative
and contradictory because it did not ap- form. Black v. Henry G. Allen Co.,
pear whether the plaintiffs, the Messrs. 42 Fed. Rep. 6r8.
Black, claimed as co-owners of the copy- 2. Proprietorship. The bill should
right or as licensees, but it was held to contain allegations which amount to an
be the correct form in equity pleading assertion of authorship in terms suffi-
474 Volume 5.
6362. COPYRIGHT. 6362.
And your orators further say that the said The Henry G. Allen
Company, intending to injure your orators, and contriving to deprive
them of the privileges which they were to receive from the sole and
exclusive printing, publishing and vending the said book entitled
" United States, Part III, Political Geography and Statistics" has unlaw-
fully, and without the consent of your orators, printed, published and
sold, or caused to be printed, published and sold, in" said southern
district of New York, since your orators' rights in the premises were
acquired, as aforesaid, and since the recording of the title of said
copyrighted book, a large number of copies of said copyrighted book,
or a substantial part or parts thereof, which infringing books 1 so
printed, published and sold by said company have been in every way
substantially the same as the book which is the subject of your ora-
tors' charge, were copied and pirated from your orators' copyrighted
book, and the reprinting, publishing and sale of which by said com-
pany was a piracy and infringement of your orators' said copyright,
and of their rights, and the rights of each and all of them, growing
out of said copyright.
And your orators say that the said piratical books so printed in
violation of your orators' rights, the said The Henry G.Allen Company
has caused to be used in connection with and as part of a so-called
" reprint " of the said Encyclopedia Britannica, Ninth Edition, of your
orators who constitute the firm of Adam 6" Charles Black, the same
having been printed and used in every way as said copyrighted book
had been printed and used by your orators constituting the firm of
Adam & Charles Black, in pursuance of their rights in the premises,
and as hereinbefore set forth; except that the said The Henry G.
Allen Company has omitted the marginal notes of the original and the
copyright notice applied upon the title-page of said copyrighted book,
to wit: "Copyright 1888, by Francis A. Walker" All of which matters
and things acted and done by the said The Henry G. Allen Company
are contrary to equity and good conscience, and a great and continu-
ing injury to your orators and to each and all of them.
And the said company has in its possession or power a large num-
ber of copies of said infringing books, and threatens to continue and
persist in publishing and selling the same in further violation of your
orators' rights as aforesaid, and infringement of their said copyright.
And your orators, all and singular, do hereby expressly waive and
relinquish any and every right which they may have by reason of the
acts of the said The Henry G. Allen Company, hereinbefore complained
ciently explicit and full to establish a cific exception the allegation that a cer-
clear title in the plaintiff. Atwill v. tain dramatic composition was" written
Ferrett, 2 Blatchf. (U. S.) 39. Or if the or composed " by citizens of the United
plaintiff is not the author, such third States was held to be a sufficient aver-
person must show a legal title and an ment of ownership. Henderson v.
exclusive right to the copyright law- Tompkins, 60 Fed. Rep. 758.
fully derived from the other. To allege 1. Exhibits. Attaching copies of the
that plaintiff owned the property with- infringed and infringing maps, etc., to
out more is insufficient. Yuengling v. a bill praying an injunction against
Schile, 12 Fed. Rep. 97; Chicago Music the infringement is proper. Black v.
Co. v. J. W. Butler Paper Co., 19 Fed. Henry G. Allen Co., 42 Fed. Rep. 618.
Rep. 758. But in the absence of spe-
475 Volume 5.
6362. COPYRIGHT. 6362.
of, to enforce against or recover of it, the said The Henry G. Allen
Company, its successors and assigns, any penalty or penalties, for-
feiture or forfeitures, under or by virtue of the statutes of the United
States concerning copyrights. 1
In consideration whereof, and because your orators are remediless
in the premises by the rules of the common law, and cannot have
adequate relief, save in a court of equity, where matters of this
nature are properly cognizable, and to the end that the said The
Henry G. Allen Company may answer, all and singular, the matters
and things hereinbefore set forth and complained of, and that the said
The Henry G. Allen Company be forever restrained by injunction, as
well perpetually as during the pendency of this suit, from printing and
from publishing and from selling or exposing for sale, or otherwise
disposing of any copies of its said piratical and unlawful book; and
that it may be ordered to render an account 2 of the profits arising
from the sale of said piratical book, as far as any profits have been
made, and required to pay over such profits to your orators; the
profits resulting from the use of said piratical book as a part of said
" reprint " being profits to which your orators constituting the firm of
Adam cr Charles Black are equitably entitled, and the remaining
profits growing out of any other infringement of said copyright, if
any there be, being profits which, of right, belong to your orator
said Francis A. Walker; and to pay to your orators their costs and
disbursements in this suit; and that your orators may have such
further relief in the premises as to this honorable court may seem
meet and equitable, and as the nature and circumstances of the case
may require.
May it please your honors such relief fully to direct and order, the
same as if the relief which equity demands were made the subject of
a specific prayer or prayers; and may it please your honors to grant
unto your orators a writ of subpoena according to the course of
courts of equity, directed to the said The Henry G. Allen Company,
commanding it personally to be and appear before this honorable
court, then and there to answer the premises, and to stand to and
abide by such order and decree therein as to this honorable court shall
seem agreeable to equity and good conscience.
And your orators, as in duty bound, will ever pray, etc.
Francis A. Walker.
Rowland Cox,
Solicitor for Complainants.
Rowland Cox,
Of Counsel for Complainants.
1. Penalties and Forfeitures. The pen- officer of the court for cancellation and
allies imposed by the act of congress, destruction, is demurrable as asking
relating to copyright, to wit, the for- for the enforcement of such forfeiture,
feiture of the printed copies and the Chapman v. Ferry, 12 Fed. Rep. 693.
sum of one dollar for each sheet un- 2. Accounting. An accounting should
lawfully printed, cannot be enforced in be prayed for if desired. Stevens v.
a court of equity. Stevens v. Gladding, Cady, 2 Curt. (U. S.) 200. But may be
17 How. (U. S.) 447. And a prayer in had under a general prayer for relief,
a bill that the plate and unsold copies Stevens v. Gladding, 17 How. (U. S.)
of a pirated map be delivered up to an 447; Gilmore v. Anderson, 38 Fed. Rep.
470 Volume 5.
6363. COPYRIGHT. 6363.
United States of America, District of Massachusetts.
County of Suffolk,
State of Massachusetts.
Francis A. Walker, being duly sworn, says he is one of the com-
plainants named in the foregoing bill of complaint by him sub-
scribed, that he has read the said bill and knows the contents thereof;
that as to the statements contained in said bill which are within his
own knowledge, they are true, and as to the statements derived from
the information of others, he verily believes them to be true. 1
Francis A. Walker.
Subscribed and sworn to before me this twenty-fifth day of October,
A. D. iSm 2
Chas. Hall Adams,
i ^ Commissioner of the State of New York.
Also Notary Public for the County of Suffolk,
State of Massachusetts.
b. Of a Book. 3
Form No. 6363.*
Circuit Court of the United States, Northern District of New York,
in the Second Circait.
The West Publishing Company
against
The Lawyers' Co-operative Publishing Company.
To the Judges of the Circuit Court of the United States for the
Northern District of New York, in the Second Circuit :
The West Publishing Company, a corporation duly organized under
the laws of the state of Minnesota, having its principal office and
place of business at -the city of St. Paul, and a resident or citizen of
the state of Minnesota, brings this its bill against the Lawyers'
Co-operatire Publishing Company, a corporation duly organized under
the laws of the state of Neiv York, having its principal office and
place of business at the city of Rochester, in the northern district of
New York, and a resident or citizen of said state of New York.
And thereupon your orator complains and says, that the defendant,
the Lawyers' Co-operative Publishing Company, is and for nine years
last past has been a corporation duly organized, created and estab-
lished by and under the laws of the state of New York for the pur-
846. And the right to an accounting verified at the time it is signed. Black
of profits is incident to the right to an v. Henry G. Allen Co., 42 Fed. Rep.
injunction under U. S. Rev. Stat (1878), 618.
4970. Falk v. Cast Lithograph, etc., 3. Precedents. See also a bill to re-
Co., 54 Fed. Rep. 890. strain the infringement of copyright
1. Knowledge of Affiant. Where the on state law reports in Curtis' Equity
bill positively avers the infringement of Precedents, p. 38, and the substance of
a copyright, it is not necessary to aver a bill to restrain infringement of copy-
that the infringement was within the right on an arithmetic in 3 Story (U. S.)
knowledge of affiant. Black v. Henry 768.
G. Allen Co., 42 Fed. Rep. 618. 4. This form is taken from the records
2. Verification. Where a bill prays in West Pub. Co. v. Lawyers' Co-oper-
for an injunction, but is not intended ative Pub. Co., 79 Fed. Rep. 756.
to be used as evidence, it need not be
477 Volume 5.
6363. COPYRIGHT. 6363.
pose of carrying on the business of making, editing, preparing,
publishing and selling books, and that during that time it has carried
on and still carries on said business at the city of Rochester, in the
state of New York; that your orator is and for ten years last past has
been a corporation duly organized, created and established by and
under the laws of the state of Minnesota for the same purpose, and
that during that time it has carried on and still carries on said busi-
ness at the city of St. Paul in said state of Minnesota, where it has its
principal office and place of business, and that the principal office and
place of business of the defendant is located at the city of Rochester
in the northern district of the state of New York, and that the defend-
ant as well as your orator is and both of them are residents or citizens
of the United States.
And your orator further alleges and shows that since the
fifteenth day of September, \W1, it has, from time to time,
made, edited, prepared and published and thereupon became and
was the author and proprietor of a book or work, which had not
then been published, entitled, " The Federal Reporter, Vol. 47. Cases
Argued and Determined in the Circuit Courts of Appeals and Circuit and
District Courts of the United States. Permanent Edition. September-
December, 1891," and generally known and labeled on the back as
the federal Reporter, Vol. 47, and, as such author and proprietor,
your orator, desiring to secure a copyright upon the same in accord-
ance with the statute of the United States in such case made and
provided, before the publication of said book, duly deposited in
the mail within the United States, to wit, at the city of St. Paul,
Minnesota, addressed to the librarian of Congress at Washington,
District of Columbia, a printed copy of the title of said book,
and in accordance with the law, on the twentieth day of February,
i8#, not later than the day of publication thereof, duly deposited
in the mail within the United States, to wit, at the city of St.
Paul, Minnesota, addressed to the librarian of Congress at
Washington, District of Columbia, two copies of such copyright book;
and that such copyright book was printed from plates made from
type set within the limits of the United States. And your orator
further alleges and shows that from the fifteenth day of September,
i&91, until the completion and publication of said book, your
orator from time to time made, edited, prepared and published
and thereupon became and was the author and proprietor of
certain advance sheets or pamphlet books or numbers, containing
the decisions of the cases argued and determined in the Circuit
Courts of Appeals and Circuit and District Courts of the United States,
from September, \W1, to December, i891, as they were handed down
by said courts, which advance sheets or pamphlet books were and
are parts of said Federal Reporter, Vol. 47, and are substantially
identical with said volume, but were issued from time to time in
pamphlet form or numbers for greater convenience and speed in pro-
mulgating said decisions and were entitled, respectively: "Federal
Reporter, Vol. 47, September 22, 1891, No. l j 'j (Here followed a similar
description of twelve other parts.}
\ And your orator further alleges and shows that your orator, desir-
478 Volume 5.
6363. COPYRIGHT. 6363.
ing to secure a copyright upon the first advance book or number so
contained in the completed and permanent edition, published prior
to the completion of the entire volume and entitled "Federal Reporter,
Vol. 47, September 22, 1891, No. 1," in accordance with the statute of
the United States in such case made and provided, before the publi-
cation of said book or advance number, duly deposited in the mail
within the United States, to wit, at the city of St. Paul, Minnesota,
addressed to the librarian of Congress at Washington, District of
Columbia, a printed copy of the title of said book or advance num-
ber, and not later than and upon the day of publication of said
book or advance number, deposited in the mail within the United
States, to wit, at the city of St. Paul, Minnesota, addressed to the
librarian of Congress at Washington, District of Columbia, two
copies of said copyright book or advance number, printed from
plates made from type set within the limits of the United States.
And your orator further alleges and shows that your orator, desiring
to secure a copyright upon each of the said remaining or following
advanced numbers or books, so published from time to time prior to
the completion and publication of the entire volume, in accordance
with the statute of the United States in such case made and pro-
vided, before the publication of each other or remaining book or
advance number, respectively, duly deposited in the mail within the
United States, to wit, at the city of St. Paul, Minnesota, addressed to
the librarian of Congress at Washington, District of Columbia, a
printed copy of the title of said book or advance number, so that the
title of each advance book or number was so deposited before the
publication of its respective book or number; and respectively not
later than and upon the respective and several days of publication
of said book or numbers, viz. : 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13
of said advanced books or numbers, duly deposited in the mails
within the United States, to wit, at the city of St. Paul, Minnesota,
addressed to the librarian of Congress at Washington, District of
Columbia, two copies of said copyright book or advanced numbers, so
that not later than the day of publication of each of said books or
advance numbers two copies of each thereof were so deposited, each
and every of the same having been printed from plates made from
type set within the limits of the United States. * * * 1
And your orator further alleges and shows that since the first day of
September, i&91, it has, from time to time, made, edited, prepared and
published and thereupon became and was the author and proprietor of
a book or work, which had not then been published, entitled (Here was
set out a copy of the title-page), 2 generally known and labeled on the back
1. Here followed similar allegations 17, 18, 19, 20; Pacific Reporter, vols.
as to complete volume and separate 27, 28, 29, 30; New York Supplement,
parts of the following reports: Federal vols. 15, 16, 17, 18, 19.
Reporter, vols. 48, 49, 50, 51; Allan- 2. The title-page referred to was as
tic Reporter, vols. 22, 23, 24; North- follows: " The American Digest. (An-
eastern Reporter, vols. 28, 29, 30, 31; nual, 1892.) Being Volume 6 of the
Southeastern Reporter, vols. 13, 14, 15; United States Digest Third Series
Southern Reporter, vols. 9, 10, n; Annuals; Also, the Complete Digest
Northwestern Reporter, vols. 49, 50, for 1892. A Digest of All the De-
Si, 52; Southwestern Reporter, vols. 16, cisions of the United States Supreme
479 Volume 5.
6363. COPYRIGHT. 6363.
as ''American Digest, 1892, Annual"; and as such author and proprietor
your orator, desiring to secure a copyright upon the same, in accord-
ance with the statute of the United States in such case made and
provided, before the publication of said book, duly deposited in the
mail within the United States, to wit, at the city of St. Paul, Minne-
sota, addressed to the librarian of Congress at Washington, District
of Columbia, a printed copy of the title of said book; and, in accord-
ance with the law, on the second day of November, i89%, not later than
the day of publication thereof, duly deposited in the mail within the
United States, to wit, at the city of St. Paul, Minnesota, addressed
to the librarian of Congress at Washington, District of Columbia,
two copies of such copyright book, and that such copyright book
was printed from plates made from type set within the limits of the
United States.
And your orator further alleges and shows that since August, iS91,
it has, from time to time, made, edited, prepared and published
and thereupon became and was the author and proprietor of a
pamphlet, book or work, which had not then been published, entitled
" The American Digest, United States Digest, Third Series (Monthly
Advance Sheets), No. 57, September, 1891," and generally known as
and called The American Digest Monthly, September, 1891; and as
such author and proprietor your orator, desiring to secure a copy-
right upon the same in accordance with the statute of the United
States in such case made and provided, before the publication of said
pamphlet book, duly deposited in the mail within the United States,
to wit, at the city of St. Paul, Minnesota, addressed to the librarian
of Congress at Washington, District of Columbia, a printed copy of
the title of said pamphlet book, and, in accordance with the law, not
later than the day of publication thereof, duly deposited in the mail
within the United States, to wit, at the city of St. Paul, Minnesota,
addressed to the librarian of Congress at Washington, District of
Columbia, two copies of such copyright pamphlet book, and that such
copyright pamphlet book was printed from plates made from type
set within the limits of the United States. (Here follow similar
allegations as to the monthly advance sheets Nos. 58 to 68 inclusive.}
And your orator further alleges and shows that each and all of
said permanent or complete volumes of reports, as well as each and
all of said advance numbers or books, embodied in said several
volumes, were prepared, arranged and reported by and under the
direction of your orator, and each of said volumes and advance
numbers or books contained and contains a large amount of matter
Court, all the United States Circuit lish and Canadian Cases, Memoranda
and District Courts, the Courts of Last of Statutes, Annotations in Legal Peri-
Resort of all the States and Territories, odicals, etc. A Table of the Cases
and the Intermediate Courts of New Digested, and a Table of Cases Over-
York State, Pennsylvania, Ohio, Illi- ruled, Criticised, Followed, Distin-
nois, Indiana, Missouri, and Colorado, guished, etc., During the Year.
U. S. Court of Claims, Supreme Court References to the State Reports Given
of the District of Columbia, etc., as Re- by an Improved Method of Topical
ported in the National Reporter System Citation. Prepared and Edited by the
and elsewhere from September i, 1891, Editorial Staff of the National Reporter
to August 31, 1892. With Notes of Eng- System."
480 Volume 5.
6363. COPYRIGHT. 6363.
original with your orator, all of which was and is the private property
of your orator as the author and proprietor thereof, and your orator
applied for, and as such author and proprietor obtained, the copy-
rights thereon as aforesaid.
And your orator further alleges and shows that each and every one
of said volumes of reports, as well as each and every of said advance
numbers or books, embodied in said several volumes, were prepared
and reported, as aforesaid, with great labor and expense, in many
instances, from the original cases or error-books, containing the
processes, pleadings, proceedings, evidence, objectings, rulings,
decisions and exceptions, and from the original points or arguments
of counsel, and in all cases from the opinions of the courts or judges
delivering judgment, copies of which were obtained, at great expense,
by your orator, immediately upon their being handed down. That
each of said volumes, as well as each of said advance numbers or
books embodied therein, contains a great number of the opinions
and decisions of the said courts of judicature, and among other
additional original matter your orator prepared for each case and
decision so reported a syllabus or head-notes, containing a brief
statement of the facts and points of law decided thereon, and also,
in many of the cases, preliminary statements of the facts on which
the decisions were made. That said syllabi or head-notes and pre-
liminary statements of facts were, except where prepared by the
court and so designated, wholly original with your orator, and were
made, edited and published, as aforesaid, in said advance numbers
as speedily as possible, and in most instances prior to any other pub-
lication or report of said cases within the United States. That the
syllabi or head-notes to all the cases reported in each permanent or
completed volume were also, by your orator, alphabetically arranged
according to the subject matter and reprinted as an index at the end
of such volume, with the names of the parties to the cases to which
they belonged and a reference to the page where they would be
found, thus making for each volume a full and complete digest of
the points decided and the cases reported therein, and making said
volumes or works convenient and of great value to all persons
desiring to use the same.
And your orator further alleges and shows that the American
Digest Monthly of your orator was principally composed of and com-
piled from the syllabi or head-notes made by your orator of the
decisions of causes reported in its said reports taken from the
advance numbers of books thereof from time to time as prepared,
and collected and arranged under their proper subjects and head-
ings, to which they referred in digest form. And that syllabi or
head-notes, made, edited and prepared by your orator for its said
system of reports and advance numbers, were made, edited and pre-
pared also with a special reference to their fitness and adaptability
for use as digest paragraphs in the index digest to each complete
volume of reports, and in the monthly or advance digest sheets or
pamphlets, and also in the American Annual Digest, or permanent
digest for the year. And that the Annual Digest of your orator for
was principally compiled from and composed of the syllabi or
5 E. of F. P. 31. 481 Volumes.
6363. COPYRIGHT. 6363.
head-notes of the cases originally made, edited and prepared for and
published in the advance numbers of its permanent editions of its
reporters, and which were from time to time reprinted in digest
form in the advance numbers or monthly parts of the Digest, from
which, and from the advance sheets of the reporters, they were
afterward collected and rearranged in permanent form under their
appropriate subjects and headings in the Annual Digest as aforesaid.
And your orator further alleges and shows that, by the original
work of your orator, and in particular by the original syllabi or
head-notes, said volumes of reports and said American Annual Digest?
as well as the advanced numbers or books, and said Monthly Digest,
became and were convenient and were of great value to all persons
desiring to use the same. And your orator further alleges and
shows that it has, from time to time, printed and sold a large num-
ber of said volumes and the said respective advance numbers or
books to its customers and subscribers, amounting to several thou-
sand of each of said volumes, with the advance numbers or books,
and also of the American Digest, with its monthly advance numbers
or books, and has caused to be printed and inserted in each and all
of said copies or volumes, as well in the permanent and complete
books or editions as in each and every advance number and book,
on the back of the title-page of each and all the complete and per-
manent volumes or books, and on the title-page of each and all the
advance numbers or books, the information and notice of such copy-
right as required by law; that your orator has never sold or trans-
ferred any of said copyrights of said books or works or advance
numbers or books, nor any interest or share in the same or in either
of them, nor authorized the defendant to publish any of- said volumes
of reports or any portion thereof, or extracts, excerpts or abridge-
ments thereof; but your orator was and is the sole and exclusive
owner of the stock, and the proprietor of all of the said copyrights,
and has the sole and exclusive right to publish each and all of the
said syllabi and head-notes and preliminary statement of facts con-
tained in said volumes and advance numbers or books, and reprinted
in said Annual and Monthly Digests as aforesaid; that your orator
had and has the exclusive right to all the contents contained in each
and all of said books, volumes or works, and in all of said advance
numbers or books, such as the head-notes, head-lines or catch- words,
preliminary statements of facts, abstracts of points or arguments of
counsel, the arrangement and division of the cases into volumes,
the notes of authorities added to any of the cases as reported, the
indices or index-digests in and for each completed or permanent
volume of reports, and of all other matter excepting merely the
opinions or decisions of the said courts; and the said copyright of
the said completed or permanent volumes, together with the said
respective advance numbers or books thereof, as well as the said
Annual and Monthly Digests, are of great value, to wit, of the value
of three hundred thousand dollars, and the loss and damage to your
orator by reason of the violations thereof is not less than the same
amount.
Nevertheless, as your orator further alleges and shows, the
482 Volume 5.
6363. COPYRIGHT. 6363.
defendant, in its business of publishing and selling law-books,
reports and digests, has for several years past and now does publish
and sell a volume, annually, known as and called the General Digest,
of which it publishes and issues advance sheets and numbers semi-
monthly, which said digest and advance numbers is published and
sold in competition with the said copyright books and advance num-
bers or books of your orator, including its Annual and Monthly
Digests. That the said defendant, well knowing that the syllabi or
head-notes of your orator were made, edited and prepared by your
orator with special reference to their adaptability and fitness for use
as digest items, and that your orator had been so using and intended
so to use the said syllabi or head-notes, did, at different times during
the latter portion of the year iS91, and the year i&92, without the
consent of your orator, reprint, publish and sell at the cities of
Rochester, New York, and elsewhere in the state of New York, and
in the said northern district of New York, and all over the United
States, and did continuously since and still does publish and expose
to sale and sell in large numbers, advance numbers of their General
Digest, containing statements of facts, syllabi and head-notes taken,
copied and pirated from the said several advance numbers or books
thereof of your orator, as well as from the said Annual and Monthly
Digests.
And your orator further alleges and shows, on information and
belief, that the defendant, in preparing its General Digest for the
year iS92, has used and employed principally, as matter therefor, the
head-notes or points issued and published in its advance numbers from
time to time, which head-notes or points are largely and to a great
extent copies of and piracies upon the copyright syllabi, head-notes
or points of your orator, made, prepared and edited by your orator
and published in its volumes and advance numbers of books, as
aforesaid. And your orator further alleges and shows that the
defendant has advertised, for some time since, the publication of its
General Digest for i&92, and now threatens to and as your orator is
informed and verily believes is about to issue, publish and sell the
same, so containing infringements upon copies of and piracies of the
original copyright matter of your orator, as aforesaid, to the great
injury and irreparable damage of your orator in its business, and for
which it cannot be compensated by damages in an action at law.
That in preparing said General Digest for publication and in prepar-
ing the advance numbers thereof, the defendant has substantially
copied the head-notes and syllabi, as previously prepared and pub-
lished by your orator, as aforesaid, resorting to the devices, common
in this sort of piracy, of transposing clauses, sentences and para-
graphs, using synonyms and making colorable alterations, while
always repeating the substance, often using the exact words, and
frequently even entire sentences and entire head-notes verbatim from
said original works of your orator, and in many instances omitting to
correct even the inaccuracies and errors therein, and also in availing
itself of the original work, method and ideas of your orator in mak-
ing and preparing your orator's head-notes and in digesting the
cases, without following the exact language used by your orator, so
483 Volume 5.
6363. COPYRIGHT. 6363.
that thereby, to the great damage of your orators, the defendant was
and is enabled to prepare, publish and sell its pirated publications
with greater ease and accuracy, and at far less expense; all of which
infringements, colorable alterations, copying, piracies and transposi-
tions, will more fully appear upon an examination and comparison of
said General Digest and advance numbers thereof with said volumes
and advance numbers or books of your orator, which your orator is
ready to produce as this honorable court may direct. That the said
General Digest, so about to be published, and the advance numbers
thereof of the defendant are infringements of and piracies upon the
copyrights of your orator, and the said books were made and
intended by the defendant to take the place of and as far as possible
supersede the said books and advance numbers of your orator, and
especially the said Annual and Monthly Digests of your orator, and
by means of the various arts and devices aforesaid the defendant has
been and is selling large numbers of its said advance sheets of num-
bers of its Digest to persons who would otherwise have bought or
would now buy the said volumes and advance numbers of your orator,
and especially its Annual and Monthly Digests for \W2, to its great
loss and damage; and the defendant, by means of the art and devices
aforesaid, unless restrained by this honorable court, will sell large
numbers of their said General Digest for i8P# to persons who would
otherwise buy the said Annual Digest of your orator, to its great loss
and damage; all of which acts and doings of the defendant are con-
trary to equity and good conscience, and tend to the manifest wrong
and injury of your orator in the premises.
In consideration whereof and forasmuch as your orator is with-
out adequate remedy, save in a court of equity, your orator prays
this honorable court to issue its writ of subpoena, in due form of law
and according to the course and practice of the court, directed to
the said Lawyers' Co-operative Publishing Company, the defendant, as
aforesaid, commanding it at a certain day and under a certain
penalty to be therein specified to appear before this honorable court
to answer all and singular the matters and things hereinbefore set
forth and complained of, and especially to answer and set forth:
1. The date of the publication of each of the said advance num-
bers of said General Digest, issued since August, \^>91, by the
defendant.
2. The number of copies published of each said advance number.
3. The number of subscribers to said General Digest for the year
i%92, and how many said advance numbers of said Digest have been
sold and the prices at which they were severally sold.
4. How many orders for said General Digest have been received by
the defendant, and at what price per volume.
5. How many of each of said advance numbers of said Digest are
still in the possession and under the control of the defendant.
6. How many volumes of said complete General Digest have been
made or prepared for publication and sale, or are now being made or
prepared therefor or are now in the possession or under the control
of the defendant. And to answer all the other matters herein com-
plained of as specifically as if thereto specifically interrogated.
484 Volume 5.
6364. COPYRIGHT. 6364.
But the said answers to the foregoing interrogatories and to this
bill of complaint need not be under oath, an answer under oath being
hereby expressly waived.
And your orator prays that the defendant may be restrained by
injunction from publishing, selling or exposing for sale, or causing or
being in any way concerned in the publishing, selling or exposing for
sale, said General Digest for i892, now threatened to be issued, pub-
lished and sold by the defendant, or otherwise disposing thereof, and
from publishing, selling or exposing for sale, or causing or being in any
way concerned in the publishing, selling or exposing for sale, or other-
wise disposing of any of said advance numbers of said digest or copies
thereof, hereinbefore complained of, and that all of said books pub-
lished, as aforesaid, or so about to be published, issued or sold by the
defendant, and the stereotype plates thereof be declared forfeited to
and for the benefit of your orator, and that the defendant be required
to surrender and deliver the same to your orator, and be decreed to
render an account of all of said books or numbers published or about
to be, and of all that have been sold, and to pay the same, besides the
damages suffered from such unlawful publications and the costs of this
suit to your orator, and that your orator may have such other and
further relief as the nature and circumstances of the case may require
and as to this court shall seem just and equitable.
Pierre E. Du Bois,
Solicitor for Complainant.
. Countryman,
Of Counsel.
United States of America, )
District of Minnesota. \ SS ' '
Peyton Boyle, being duly sworn, says that he is the vice-president of tne
corporation complainant above named, and is familiar with its busi-
ness; that he has read the foregoing bill of complaint and knows the
contents thereof; that the same is true to the knowledge of deponent,
except as to the matters therein stated to be alleged on information
and belief, and that as to those matters he believes it to be true.
Peyton Boyle.
Subscribed and sworn to before me this twentieth day of December,
\W2. Ambrose Tighc,
U. S. Commissioner, District of Minnesota.
e. Of a Dramatic Composition.
Form No. 6364.'
Circuit Court of the United States for the Eastern District of Penn-
sylvania. In Equity.
To the Honorable the Judges of the Circuit Court of the United States
for the Eastern District of Pennsylvania, sitting as a Court of
Equity:
Giulio Ricordi, Luigi Erba, GiuseppePiza, Erminie Bozotti, Francesco
1. This form was obtained through reported, as the decree and injunction
the courtesy of Rowland Cox, Esq., of were obtained by consent,
the New York bar. The case was not Precedent. See also a precedent in
485 Volume 5.
6364. COPYRIGHT. 6364.
Guecchi, Luigi Origoni, Antonio Griecchi, Laura Giulini, Antonio Ri-
cordi, Amelia Ricordi, Giuseppe Ricordi, Pompeo Ricordi, of Milan, in
the kingdom of Italy, and Emilia Ricordi, of Florence, in said kingdom,
copartners engaged in business at said Milan under the firm name of
G. Ricordi 6 Co., all of whom are subjects of the king of Italy and
aliens, bring this their bill of complaint against Gustav Hinrichs, of
the city of Philadelphia, in the county of Philadelphia, in the state of
Pennsylvania, a citizen of said state and of the United States, and an
inhabitant of the eastern district of Pennsylvania and hereinafter desig-
nated defendant.
And thereupon your orators complain and say that heretofore and
before the tenth day of January, \W3, Giacomo Puccini was a subject
of His Majesty the King of Italy, which was then a foreign state or
nation which permitted to citizens of the United States of America the
benefit of copyright on substantially the same basis as its own sub-
jects, which condition aforesaid, to wit: the existence of reciprocal
rights concerning copyrights between the United States of America and
the Kingdom of Italy, was, before said tenth day of January, iS93, de-
termined by the president of the United States by proclamation duly
made and published according to law.
And your orators further say that the said Giacomo Puccini was
before the said tenth day of January, i&93, the author, inventor, com-
poser and proprietor of a certain dramatic composition entitled:
"Manon Lescaut Dramma Lirico in 4 Atti di Giacomo Puccini" which
was by your orator duly copyrighted by compliance in all things with
the statutes of the United States relating to copyrights as hereinafter
more fully set forth.
And your orators further say that before the copyrighting of the
Henderson v. Tompkins, 60 Fed. Rep. It states, in terms, that the defendant
765, where the court, in refusing to sus- adopted complainant's refrain and
tain the demurrer on the grounds chorus, but contains no express allega-
stated, took occasion to quote with a tion touching the music which infer-
special commendation the following ex- entially accompanied them. As the
tract from Drone on Copyright: " If it " matter stands, the court is unable to see
(the matter infringed upon) " has merit whether or not the music formed a part
and value enough to be the object of of the complainant's song, and, if it
piracy, it should also be of sufficient did, whether the music or the words
importance to be entitled to protection." were the novel or essential feature, and
Further discussing the demurrer, the whether the defendant adopted the
court continues: "The bill describes music or only the words. Therefore
the song in question as a portion of a the court is unable to ascertain, from
certain dramatic composition and as an the allegations of the bill, whether in
important and valuable part thereof, fact the defendant did adopt any essen-
It does not say whether by the word tial part of the complainant's dramatic
'song' is intended merely the words composition; and the bill must be
of the song set out in the bill, or whether amended, to make the case clear in this
it includes the music which accom- particular, before we can proceed fur-
panies the words, and which with the ther with it. As this difficulty was not
words constitutes a ' song,' in its noticed by either party, neither is enti-
more customary sense. The fact that tied to any consideration on the ques-
it is part of a dramatic composition tion of costs. If the complainant
leads the inference in favor of the lat- desires to amend, he may do so, or he
ter; but on this point the bill should be may dismiss the bill, but in either case
specific. The difficulty becomes a prac- without costs to either party."
tical one on pursuing the bill further.
486 Volume 5.
6364. COPYRIGHT. 6364.
said composition and before the tenth day of January, i893, the said
Puccini, for a good and valuable consideration, transferred, assigned
and sold the same and all his right, title and interest therein to your
orator and your orator became seised of all the rights of said Puccini
in and to the said composition, and became the proprietor thereof
and entitled, under the statutes of the United States, to copyright
the same.
And your orators further say that before the publication of said
composition in the United States, and before the publication thereof
in any foreign country, and for the purpose of copyrighting the same,
your orators, being the proprietors thereof, did, on the tenth day of
January, i8.9<2, deposit in the mail within the United States, addressed
to the librarian of Congress, Washington, District of Columbia, a
printed copy of the title of said composition for which they desired
a copyright, and did also, before the date of publication thereof
in the United States, and before the date of publication thereof
in any foreign country, deposit in the mail within the United
States, addressed to the librarian of Congress, Washington, District
of Columbia, two complete printed copies of the said composition,
and that the librarian did record the title of the said composition
in a book kept for that purpose in pursuance of the statutes of
the United States in such cases made and provided, and did
receive and accept from your orator the sum of one dollar for
recording the said title, and the record of which title was by the
librarian thus made on the elmenth day of January, i893, and which
title was in these words: " Manon Lescaut Dramma Lirico in 4 Atti
di Giacomo Puccini."
And your orators further say that the composition produced by
the said Puccini, as aforesaid, and of which your orators became the
proprietors, and which was by them copyrighted, as aforesaid, is a
dramatic composition of great artistic value; that the same was pub-
lished in the United States of America and elsewhere on the said
tenth day of January, i893.
And your orators further say that they gave notice of their copy-
right of said composition entitled as aforesaid by printing and inscrib-
ing upon some visible portion of each copy of said composition the
following words: " Copyright 1893 by G. Ricordi 6- Co."
And your orators say that having in all things complied with
the conditions and provisions of the statutes of the United States
in such case made and provided, as aforesaid, they acquired and
obtained and there was then on said eleventh day of January, \W3, to
them granted a good and valid copyright in the United States for
and upon said composition whereby they became entitled and acquired
and there was in them vested the sole liberty of performing, print-
ing, reprinting, publishing, copying, executing, finishing and vending
the said composition, for a period of twenty-eight years from the
eleventh day of January, i893, and which copyright thus by your orators
obtained and to them granted has continued in force from the eleventh
day of January, i&93, and is now in force, and that your orators are
now and have always been the owners thereof.
And your orators further say, on information and belief, that the
487 Volumes.
6364. COPYRIGHT, 6364.
said defendant said Gustav Hinrichs, intending to injure your orators
and to deprive them of the privileges which they were to receive
from the enjoyment of their said copyright, has unlawfully and with-
out their consent, within said eastern district of Pennsylvania, and
before the filing of this bill, and since the said tenth day of January,
i893, and since your orators' rights in the premises aforesaid were
acquired, and since the recording of the title of said copyrighted
composition, caused to be publicly performed and represented by
others the said copyrighted dramatic composition of your orators
and threatens and avows a purpose to continue, without your orators'
consent, and in violation of their rights, to cause to be publicly per-
formed or represented by others the said copyrighted composition,
and this notwithstanding your orators' protest and demand in the
premises.
And your orators say, on information and belief, that the dramatic
composition by the said Gustav Hinrichs thus caused to be publicly
performed and represented, the performance of which is hereinbe-
fore alleged to be an infringement of your orators' copyright, is in
all things substantially the same as your orators' copyrighted compo-
sition, and in all things, to all the intents and purposes, an actual
copy and reproduction thereof which has been held out to the public
by the said Gustav Hinrichs to be your orators' composition aforesaid,
produced by the said Puccini.
And your orators further show unto your honors that forasmuch
as they can have no adequate relief except in this honorable court,
and to the end that the said defendant, Gustav Hinrichs, may answer
all and singular the premises and things hereinbefore set forth and
complained of, and that the said defendant, said Gustav Hinrichs,
may be forever enjoined and restrained by injunction from in any
and every form or manner, directly or indirectly, performing and
representing the said copyrighted dramatic composition of your
orator, and from, directly or indirectly, in any form or manner vio-
lating your orator's exclusive right under said copyright, and that he
may be ordered to render an account of the profits arising from the
unauthorized performance of said dramatic composition, as far as
any profits have been made, and required to pay over such profits
to your orator and to pay to your orators their costs and disburse-
ments in this suit, and that your orator may have such further relief
in the premises as to this honorable court may seem meet and equita-
ble, and as the nature and circumstances of the case may require.
And your orators pray, also, for a provisional or preliminary
injunction as herein prayed for in respect of a perpetual injunction,
and for such further relief as the equity of the case may require and
as to your honors may seem meet.
And finally, to the end. that equity may be done and that the relief
herein prayed for and all other relief that it may be righteous in the
premises to administer may be afforded your orators, may it please
your honors such relief fully to grant and to grant unto your orators
a writ of subpoena ad respondendum issuing out of and under the
seal of this honorable court, directed to the said Gustav Hinrichs,
commanding him to appear and make answer to this bill of com-
488 Volume 5.
6365. COPYRIGHT. 6365.
plaint, and to perform and abide by such order and decree herein as
to this court shall seem just.
And your orators, as in duty bound, will ever pray.
Rowland Cox,
Solicitor for Complainants.
Rowland Cox,
Of Counsel for Complainants.
d. Of an Engraving.
Form No. 6365.'
Circuit Court of the United States for the District of New Jersey.
In Equity.
To the Honorable the Judges of the Circuit Court of the United
States for the District of New Jersey, sitting as a Court of
Equity:
George Edward Briscoe Eyre, W. Hugh Spottiswoode and Cyril A.
Spottiswoode, all of the city of London, England, copartners engaged
in business at said city of London, under the firm name and style of
Eyre 6 Spottiswoode, and all of whom are subjects of Her Majesty the
Queen of Great Britain and Ireland, and all of whom are aliens, bring
this their bill of complaint against the American Lithographic Company,
a corporation organized and existing under and by virtue of the laws
of the state of New Jersey, and having its principal place of busi-
ness at South Orange in said state of New Jersey, and hereinafter
designated the defendant.
And thereupon your orators complain and say that heretofore and
before the twenty-second fay of September, iWl, Charles John Tompkins
was a subject of Her Majesty the Queen of Great Britain and Ireland,
and was the author, inventor, designer and proprietor of a certain
engraving by your orators copyrighted as hereinafter set forth, and
entitled "Little Lord Fauntleroy, an engraving in pure mezzo-tint by Chas.
J. Tompkins from the original painting of James Sant, royal academician."
And your orators further say that before the copyrighting of
the said engraving and before the twenty-second &&y of September, i&91,
the said Tompkins, for a good and valuable consideration, transferred,
assigned and sold the same and all his rights, title and interest
therein to your orators, and your orators became seised of all the
rights of the said Tompkins in and to the said engraving and became
the proprietors thereof and entitled, under the statutes of the United
States, to copyright the same.
And your orators further say that before the publication of said
engraving in the United States, and before the publication thereof in
any foreign country, and for the purpose of copyrighting the same, your
orators, being the proprietors thereof, did on the twenty-second day of
September, i&91, deposit in the mail within the United States,
addressed to the librarian of Congress at Washington, District of
1. This form was obtained through the as the decree and injunction were ob-
courtesy of Rowland Cox, Esq., of the tained by consent.
New York bar. The case is not reported.
489 Volume 5.
6365. COPYRIGHT. 6365.
Columbia, a printed copy of the title of said engraving for which they
desired a copyright, and did, also, before the date of publication
thereof in the United States, and before the date of publication
thereof in any foreign country, deposit in the mail within the United
States, addressed to the librarian of Congress at Washington, District
of Columbia, two copies of the said engraving, and that the librarian
of Congress did record the title of the said engraving in a book kept
for that purpose in pursuance of the statutes of the United States in
such case made and provided, and did receive and accept from your
orators the sum of one dollar for recording the said title, and the
record of which title was by the librarian thus made on the twenty-
third day of September, i&91, and which title was in these words, to
wit : ' ''Little Lord Eauntleroy, an engraving in pure mezzo-tint by Chas. J.
Tompkins from the original painting of James Sant, royal academician."
And your orators further say that they gave notice of their copy-
right of said engraving entitled as aforesaid by printing and inscrib-
ing upon some visible portion of each copy of said engraving the
following words and letters, to wit: " Copyright, 1891, by Eyre &
Spottiswoode. ' '
And your orators further say that having in all things complied
with the conditions and provisions of the statutes of the United
States in such case made and provided, as aforesaid, they acquired
and obtained and there was then granted a good and valid copyright
in the United States for and upon said engraving whereby they
became entitled, and there was in them vested, the sole liberty of
printing, reprinting, publishing, copying, executing, finishing and
vending the said engraving for a period of twenty-eight years from
the twenty-third day of September, iS91, and which copyright thus by
your orators obtained and to them granted has continued in force
from the said twenty-third day of September, i891, and is now in force,
and that your orators are now and have always been the owners
thereof.
And your orators further say that the said engraving produced by
the said Tompkins, as aforesaid, and of which they became the
proprietors and which was by them copyrighted, is a work of great
excellence and of great artistic value, and that the same has been,
since the said copyright was obtained, for sale in the United States to
the public at a reasonable price, and your orators have been and are
able and desirous of supplying the public in the United States and
elsewhere with copies of the said engraving.
And your orators further say that the said engraving was made
from the original painting by James Sant, an eminent English painter,
entitled "Little Lord Fauntleroy," with the knowledge and acquiescence
of said Sant, the said Tompkins having been employed to produce the
said engraving by reason of his exceptional talent and ability as an
engraver, and the said engraving, your orators aver, is a work not
only of great artistic value, but of unmistakable originality. 1
1. Originality of Work. The bill merit that the petitioner is " the author,
should show the existence of facts of inventor, designer and proprietor of a
originality of intellectual production, photograph " of a person, which photo-
thought and conception, and an aver- graph is alleged to be copyrighted, is not
490 Volume 5.
6365. COPYRIGHT. 6365.
And your orators further say, on information and belief, that the
said defendant, American Lithographic Company, is engaged in business
in the manufacture and sale, among other things, of lithographs, aud
that, well knowing the premises and the rights secured unto your
orators, as aforesaid, under the statutes relating to copyrights, since
your orators' rights were acquired as aforesaid, and wholly without
your orators' consent and in violation of their rights in the premises
aforesaid, and in violation of your orators' said copyright, the said
defendant, said American Lithographic Company, has engraved, etched,
worked, copied, printed, published and sold a large number of litho-
graphic pictures copied from your orators' said copyrighted engrav-
ing, and has, in violation of your orators' rights in the premises
aforesaid, printed, reprinted, copied, executed, finished and vended
your orators' said copyrighted picture and the subject of your orators'
said copyright in violation and infringement of your orators' rights
in the premises arising under the statutes of the United States con-
cerning copyrights, and in violation of the said copyright obtained
and secured and owned by your orators as aforesaid, and continues
so to do.
And your orator further shows unto your honors that forasmuch as
he can have no adequate relief except in this honorable court, and to
the end that the said defendant, said American Lithographic Company,
may answer all and singular the premises and things hereinbefore set
forth and complained of, and that the said defendant, said American
Lithographic Company, may be forever enjoined and restrained by in-
junction from printing and from publishing and from importing and
from selling and from exposing for sale any copy or copies of said
engraving by your orators copyrighted as aforesaid and entitled
"Little Lord Fauntleroy" etc., which it has etched, engraved, worked,
copied, printed and published, and in every way from infringing your
orators' said copyright and from violating your orators' exclusive
rights secured by them as hereinbefore set forth, and that it may be
ordered to render an account of the profits arising from the sale of
said piratical copies of said engraving, as far as any profits have been
made, and required to pay over such profits to your orators and to
pay to your orators their costs and disbursements in this suit, and that
your orators may have such further relief in the premises as to this
honorable court may seem meet and equitable, and as the nature and
circumstances of the case may require.
And your orators pray, also, for a provisional or preliminary in-
junction as herein prayed for in respect of a perpetual injunction, and
for such further relief as the equity of the case may require and to
your honors may seem meet.
And finally, to the end that equity may be done and that the relief
sufficient. Falk v. City Item Printing tied ''Photograph No. 23 of Lillian Rus-
Co., 79 Fed. Rep. 321. But in Falk v. sell, by J. B. Falk, New York'" is
Schumacher, 48 Fed. Rep. 222, it was sufficient, without entering into a de-
heldihat an allegation thatthecomplain- tailed description of the method adopted
ant " is the author, inventor, designer in taking the photograph, nor was the
and proprietor of a certain photograph complainant required to attach a copy
and negative thereof, known and enti- thereof to his bill of complaint.
491 Volume 5.
6366. COPYRIGHT. 6366.
herein prayed for and all other relief that it may be righteous in the
premises to administer may be afforded your orators, may it please
your honors such relief fully to grant and to grant unto your orators
a writ of subpoena ad respondendum issuing out of and under the
seal of this honorable court directed to the said American Lithographic
Company and commanding it to appear and make answer to this bill
of complaint, and to perform and abide by .such order and decree
herein as to this court shall seem just.
And your orators, as in duty bound, will ever pray.
Rowland Cox,
Solicitor for Complainants.
Roivland Cox,
of Counsel for Comp'ts.
United States of America, )
State of New York, > ss.
County of New York. )
Edwin Young, being duly sworn, deposes and says that he is a mem-
ber of the firm of E. 6y. B. Young & Co., which firm and its prede-
cessors have been for more than five years the representatives in the
United States for the firm of Eyredr Spottiswoode, the complainants
named in the foregoing bill of complaint; that he has read said bill
of complaint and knows the contents thereof; that the same is true
to his own knowledge except as to the matters therein stated upon in-
formation and belief, and as to those matters he verily believes to be
true; that the complainants herein reside in London, which is the
reason why this affidavit is made by affiant.
Edwin Young.
Subscribed and sworn to before me this second day of June, i S92.
(SEAL) Herman Gustow,
Notary Public, New York County.
3. Answer Denying Infringement. 1
Form No. 6366."
United States Circuit Court, Northern District of New York.
West Publishing Company
vs.
Lawyers' Co-operative Publishing Company.
The defendant, for answer to the bill of complaint exhibited herein,
1. For the formal parts of an answer that such substitution was made after
in a particular jurisdiction consult the publication. Osgood v. Aloe Instru-
titles ANSWERS IN EQUITY, vol. i, p. ment Co., 69 Fed. Rep. 291.
854; ANSWERS IN CODE PLEADING, vol. 2. This form is copied from the
i, p. 799. records in the case of the West Pub.
Defective Answer. An answer which Co. v. Lawyers' Co-operative Pub. Co.,
alleges that a copy of complainant's 79 Fed. Rep. 756. The answer is
book, profert of which is made in the good in form, for although that case
bill, is not a true copy of the copyrighted was decided against the defendant it
book, but that the title-page thereof had was on questions of fact put in issue
been removed and another page sub- by the answer, and not because of any
stituted, does not constitute a sufficient formal defects therein,
defense unless the answer further avers
493 Volume 5.
6366. COPYRIGHT. 6366.
says: It admits that the plaintiff is a corporation organized under
the laws of the state of Minnesota, and having its principal office and
place of business at the city of St. Paul in said state, and that the
plaintiff has carried on and still carries on its business at the city
of St. Paul, aforesaid ; and that the defendant is a corporation organ-
ized under the laws of the state of New York for the purposes alleged
in said bill of complaint, and has carried on and still carries on its
business at the city of Rochester in said state; and that the business
so carried on by the said defendant and the said plaintiff is correctly
stated in said bill of complaint.
Said defendant, further answering, admits that the plaintiff has
published the various books or works alleged to have been published
by it in said bill of complaint, and that the same were printed from
plates made from type set within the limits of the United States, but
whether said plaintiff has taken the various steps to secure a copy-
right upon or for said works, or whether said defendant has acquired
a copyright therein, or in any of the same, as stated in said bill of
complaint, this defendant has no knowledge or information sufficient
to form a belief, and, therefore, leaves the plaintiff to its proof.
Said defendant admits that each and all of said permanent or com-
plete volumes of reports, as well as each and all of said advance
numbers or books embodied in said volumes, were prepared, arranged
and reported under the direction of the plaintiff, and that each and
all of said advance numbers, volumes or books contained matter
original with the plaintiff, but whether the amount of the original
matter contained in said volumes, advance numbers or books is large
or otherwise, or whether the same is a private property of the plain-
tiff as author or proprietor, and whether the plaintiff has obtained
copyrights thereon, as alleged in said bill of complaint, this defend-
ant has no knowledge or information sufficient to form a belief.
Said defendant further says that it has no knowledge or informa-
tion sufficient to form a belief as to the way in which said reports,
numbers or books were prepared and reported, or at what labor
and expense, and, therefore, leaves the plaintiff to its proof. The
said defendant admits that the syllabi and head-notes, and prelimi-
nary statements of facts, except where prepared by the court, were
original with said plaintiff, and were made, edited and published as
stated in said bill of complaint, and that the syllabi or head-notes of
cases reported in each permanent or completed volume were by the
plaintiff alphabetically arranged, and reprinted as an index at the
end of such volume, as is alleged in said bill of complaint.
Said defendant further admits that the American Digest Monthly of
said plaintiff, and the Annual Digest of said plaintiff for the year 1 892,
were principally compiled from and composed of the syllabi or head-
notes of the cases originally prepared for and published in the
advance numbers of its permanent edition of its reporters, and
which were from time to time reprinted in the advance numbers or
monthly parts of its digest; but whether the said syllabi or head-notes,
made, edited or prepared by the plaintiff for its system of reports and
advance numbers, were made, edited and prepared with special refer-
ence for use as digest paragraphs in the index digests to each com-
493 Volume 5.
6366. COPYRIGHT. 6366.
plete volume of reports and in the monthly or advance digest sheets
or pamphlets, and also in the American Annual Digest, or permanent
digest for each year, this defendant has no knowledge or information
sufficient to form a belief.
Said defendant admits that the said American Annual Digest, and
said advance numbers of said Monthly Digest, became and were con-
venient and were of value to all persons desiring to use the same,
but whether of great value or of what value, this defendant has no
knowledge or information sufficient to form a belief.
The defendant admits that the plaintiff has from time to time
printed and sold a large number of said volumes and of said advance
numbers, and of its American Annual Digest and of its monthly
advance numbers or books, but whether to the amount of several
thousands of each of said volumes, or to what amount this defend-
ant has no knowledge or information sufficient to form a belief.
It admits that the plaintiff has caused to be printed and inserted
in its copies or volumes, and in the permanent and completed books
or editions, and in each advance number or book, and in each of the
complete and permanent volumes or books, notice that the same
were copyrighted, as required by law, as alleged in said bill of com-
plaint. Whether the plaintiff has ever sold or transferred any of said
copyrights this defendant has no knowledge or information sufficient
to form a belief.
It admits that the plaintiff has never authorized this defendant to
publish any of said volumes of reports, or the syllabi or head-notes
thereof, or extracts, excerpts or abridgments thereof, except such
right as was conferred upon the defendant and upon the public at
large to make use of such publication, by reason of the publication
thereof. The defendant has no knowledge or information sufficient
to form a belief as to whether the plaintiff is the exclusive owner and
proprietor of all the said copyrights, or whether it has the sole and
exclusive right in each and all of the syllabi, head-notes and prelimi-
nary statements of facts contained in said volumes, in advance num-
bers or books, and reprinted in said Annual or Monthly Digests, as
aforesaid; or whether it has the exclusive right to the head-notes,
head-lines or catch-words, preliminary statements of facts, abstracts
of arguments of counsel, arrangements and division of the cases into
volumes, notes of authorities added to any of the cases reported,
indices or index digests in and for each complete volume of reports,
and of all matter, excepting the opinions and decisions of said courts,
or any of the matters in said bill of complaint stated.
The defendant denies that the value of said advance numbers,
books, annual digests and monthly digests, mentioned in the said bill
of complaint, is $$00,000, or any like sum, or that the loss or damage
to the plaintiff by the violation of any of its rights mentioned or
alleged in said bill of complaint is of that or any similar amount;
but as to 'what is the value of said books, advance numbers and
digest, this defendant has no knowledge or information sufficient to
form a belief, and it denies that the plaintiff has sustained any loss
or damage by reason of violation of any of its rights alleged in said
bill of complaint.
494 Volume 5.
6366. COPYRIGHT. 6366.
This defendant admits that in its business of publishing and sell-
ing law-books, reports and digests, it does and has for several years
past published and sold annually a volume known and called the
General Digest, of which it publishes and issues advance sheets semi-
monthly, and that said digest and advance sheets or numbers are
published and sold in competition with the advance numbers or
books of the plaintiff, including its annual or monthly digest.
Said defendant, further answering said bill of complaint, says, that
it denies each and every allegation in said bill of complaint charging
this defendant with using or intending to use the syllabi or head-
notes of the plaintiff, or any of them, or reprinting, publishing or
selling in large numbers, or any numbers, in advance numbers of its
General Digest, or otherwise, statements of facts, syllabi or head-notes,
taken, copied or pirated from the volumes of reports of the plaintiff,
or from the advance numbers or books thereof, or from its annual or
monthly digest, or that it has used or employed, principally or at all,
in preparing its General Digest for i8##, the head-notes or points
issued and published by the plaintiff, or that said head-notes or
points issued and published by the defendant are largely, or at all,
copies of and piracies upon the head-notes or points of the plaintiff,
made, prepared and edited by it, and published in its volumes,
advance numbers or books, as charged in said bill of complaint.
The said defendant denies that, in preparing its General Digest for
publication, and the advance numbers thereof, it has substantially,
or at all, copied the head-notes and syllabi previously prepared and
published by the plaintiff, or that it has resorted to any of the
devices in reference thereto charged in said bill of complaint, or that
it has availed itself of the original work, method and ideas of the
plaintiff, in making and preparing its head-notes, or in digesting
cases, as charged in said bill of complaint; and it denies that any of
its publications are pirated from, either wholly or in part, the publi-
cations of the said plaintiff.
The defendant denies that its General Digest for i8##, or the
advance numbers thereof, are infringements of or piracies upon the
copyrights, if any, of the plaintiff.
The defendant admits that its publications were made and intended
to take the place of, and, as far as possible in legitimate business
competition, supersede the books and advance numbers of the plain-
tiff; but it denies that it has resorted to any of the arts or devices to
secure the object inconsistent with legitimate business competition,
and it denies, upon information and belief, that it has been and is
selling large numbers of its advance sheets or numbers of its digest
to persons who would otherwise have bought the volumes and
advance numbers of the plaintiff, or its annual or monthly digest for
1 892; and it denies that the plaintiff has sustained loss and damage
by any act of this defendant; and it denies that it has or will sell
large, or any, numbers of its General Digest for iS92 to persons who
would otherwise buy the Annual Digest of the plaintiff, to its loss or
damage, which sales were procured, or will be procured, by means of
any of the wrongful or illegal arts or devices charged in said bill of
complaint; and it denies that it has done any act contrary to equity
495 Volume 5.
6367. .COPYRIGHT. 6368.
and good conscience, and which tends to the wrong and injuiy of the
plaintiff.
The defendant denies each and every allegation in said bill of com-
plaint not hereinbefore specifically answered unto, and prays that it
may be hence dismissed, with costs.
Lawyers' Co-operative Publishing Co.,
By James E. Briggs.
Cogswell, Bentley 6 Cogswell,
Defendant's Solicitors.
William F. Cogswell,
Of Counsel.
4. Replication. 1
Form No. 6367.*
Circuit Court of the United States, Northern District of Neiv York.
The West Publishing Company,
complainant,
vs. y In Equity.
The Lawyers' Co-operative Publishing
Company, defendant.
The replication of the West Publishing Company, complainant,
to the answer of the Lawyers Co-operative Publishing Company,
defendant.
This replicant saving and reserving unto itself now and at all times
hereafter all and all manner of benefit and advantage of exception
which may be had or taken to the manifold insufficiencies of the said
answer, for replication thereunto says that it will aver, maintain and
prove its said bill of complaint to be true, certain and sufficient in
law to be answered unto, and that the said answer of the said defend-
ant is uncertain, untrue and insufficient to be replied unto by this
replicant. Without this that any other matter or thing whatsoever in
the said answer contained, material or effectual in the law to be
replied unto, and not herein and hereby well and sufficiently replied
unto, confessed or avoided, traversed or denied is true. All which
matters and things this replicant is and will be ready to aver, maintain
and prove as this honorable court shall direct, and humbly prays as
in and by its bill it has already prayed.
Pierre E. Du Bois,
Solicitor for Complainant.
5. Decrees. 3
a. FOP Permanent Injunction.
1. For the formal parts of a replication 3. For forms of decrees, generally, con-
or reply in a particular jurisdiction suit the title DECREES.
consult the title REPLICATIONS. Precedent. See also a decree revers-
2. This form is copied from the ing the decision of the circuit court
record in West Pub. Go. v. Lawyers' dismissing a bill and directing an in-
Co-operative Pub. Co., 79 Fed. Rep. junction and accounting in Stevens v.
756. Gladding, 17 How. (U. S.) 455.
496 Volume 5.
6368. COPYRIGHT. 6368.
Form No. 6368.'
At a Stated Term of the Circuit Court of the United States for the
Southern District of New York, held at the United States Circuit
Court Room, in the Post-office Building in the City of New York, in
said District, on the sixteenth day of May, \WS.
Present: Hon. William K. Townsend, Judge.
James T. Black, Francis Black, "
Adam W. BlacR and Francis
A. Walker, complainants,
v.
In Equity.
No. 4718.
The Henry G. Allen Company,
defendant.
This cause came on to be heard at this term, and was argued by
counsel; and thereupon, upon consideration thereof, it was ordered,
adjudged and decreed as follows:
I. That the certain copyright having relation to and being for a
certain book entitled " United States, Part III, Political Geography
and Statistics," and granted to Francis A. Walker on the thirteenth day
of February 1888, and in the bill of complaint herein mentioned is a
lawful copyright secured and existing under and in pursuance of the
statutes of the United States, and good and valid in law, whereby
there was secured to and acquired by the said Francis A. Walker,
his heirs and assigns, the sole liberty of printing, reprinting, publish-
ing, completing, copying, executing, finishing and vending the said
book for the term of twenty-eight years from the time of recording
the title thereof, to wit, from the said thirteenth day of February,
1888.
II. That the defendant herein has infringed the said copyright and
the rights of the complainants thereunder by reproducing, copying,
publishing and selling, and causing to be reproduced, copied, pub-
lished and sold, without the complainants' consent, copies of said copy-
righted book entitled " United States, Part III, Political Geography
and Statistics" as part of the twenty-third volume of a certain reprint
of a certain book or publication entitled "Encyclopedia Britannica,
Ninth Edition."
III. That an injunction issue herein, perpetually enjoining and
restraining defendant herein, The Henry G. Allen Company, its officers,
agents, servants and workmen, from in any form or manner, directly
or indirectly, reproducing, and from printing and from reprinting
and from copying and from in any form or manner, directly or
indirectly, offering to reproduce, and from offering to print and
from offering to reprint and from offering to copy and from in any
manner whatsoever offering to sell any copy or copies whatsoever
of said copyrighted book entitled " United States, Part III, Political
Geography and Statistics," or any part or parts thereof; and from
directly or indirectly, in any form or manner, reproducing, printing,
reprinting, completing, copying, executing, finishing, vending, or
selling, and from directly or indirectly, in any form or manner,
1. This form is copied from the records in the case of Black v. Henry G.
Allen Co., 42 Fed. Rep. 618.
5 E. of F, P. 32. 497 Volume 5.
6369. COPYRIGHT. 6369.
offering to reproduce, print, reprint, complete, copy, execute, finish,
vend or sell any copy or copies whatsoever of the book or publica-
tion entitled "Encyclopedia Britannica, Ninth Edition," or any
other book or publication which shall contain or consist in part of
said copyrighted book entitled " United States, Part III, Political
Geography and Statistics." But nothing herein contained shall in any
wise prohibit the sale by the said defendant of any book whatso-
ever published or issued by the owners of said copyright or their
representatives.
IV. That the complainants do recover of the defendant the costs
and disbursements of this suit.
Wm. K. Townsend, Judge.
b. For Permanent Injunction and Directing Reference to Master.
Form No. 6369.
(Precedent in Myers v. Callaghan, 5 Fed. Rep. 735.)
[(Caption as in Form No. 6368. )]*
This cause coming on for final hearing on the bill, answers and
testimony, and the court being fully advised, finds:
That the complainant is the owner of the copyright or exclusive
right of publication of the volumes described in said bill of complaint,
and known as volumes thirty-two (32), thirty-three (33), thirty-four (34),
thirty-five (35), thirty-six (36), thirty-seven (37), and thirty-eight (38), of
the Illinois Reports.
That said defendants Bernard Callaghan, Andrew Callaghan, Andrew
P. Callaghan, Sheldon A. Clark, violated said copyright of said com-
plainant, as to said volumes 32, 33, 34, 35, 36, 37, as 38, by publish-
ing, offering for sale, and selling copies thereof, and the said Marshall
D. Ewell and V. B. Denslow in editing the same.
Wherefore, it is ordered and decreed that all said defendants be
perpetually enjoined from further publishing or selling, transferring
or removing, any of said books.
And as it does not appear what number of said volumes have been
published by said defendants Bernard Callaghan, Andrew Callaghan,
Andrew P. Callaghan, and Sheldon A. Clark, or the value of said com-
plainant's volumes before the illegal publication and sale by the said
defendants of the copies thereof, it is ordered that this matter be
referred to Henry W. Bishop, one of the masters of this court, to
ascertain and report what number of each of said volumes have been
printed, and what number have been sold, and at what price, by said
last named defendants, and that the defendants last named may be
examined in regard thereto, and that they may be required to produce
their account-books and papers, and that said master also ascertain
and report what was the market value of each of said books of com-
plainant prior to the said illegal publication of said books by the
defendants last named.
And also what was the actual cost or value of reprinting and bind-
1. The words and figures to be supplied within [ ] will not be found in the
reported case.
498 Volume 5.
6370. COPYRIGHT, 6370.
ing each of said volumes; and that, upon the making of such report,
said complainant have leave to apply for a further order in regard to
the damages to be allowed for the said illegal publication and sale of
said volumes.
And the solicitor for complainant having made application herein,
upon the suggestion that since the filing of the bill in this cause said
defendants last named have proceeded to publish and "sell copies of
the books described in said bill as volumes numbers 39, 41, 4%, 4$,
44, 4*5, an d 46, of said Illinois Reports, and upon the further suggestion
that such publication is in violation of the rights of said complainant,
it is ordered that he have leave to file a supplemental bill herein in
regard thereto.
[(Signature as in Form No. 6S68.)Y
6. Injunction. 2
Form No. 6370.*
The President of the United States of America to The Henry G. Allen
Company, your officers, agents, servants and workmen, Greeting:
Whereas, it has been represented to us in our Circuit Court of the
United States for the Southern District of New York, in the Second Cir-
cuit, on the part of fames T. Black, Francis Black, Adam W. Black
and Francis A. Walker t complainants, that they have lately exhibited
their bill of complaint in our said Circuit Court of the United States
for the Southern District of New York, against you, the said The
Henry G. Allen Company, defendant, to be relieved touching the mat-
ters therein complained of; and that the certain copyright having
relation to and being for a certain book entitled "United States, Part
III, Political Geography and Statistics," and granted to Francis A.
Walker, on the thirteenth day of February, 1888, and in the bill of
complaint herein mentioned, is a lawful copyright secured and exist-
1. The words and figures to be sup- S. 414; Ingram v. Stiff, 5 Jur. N. S.
plied within [ ] will not be found in the 947; Buxton v. James, 5 DeG. & Sm. 80;
reported case. Prince Albert v. Strange, 2 DeG. & Sm.
2. For writs of injunction, and re- 652; Bogue v. Houlston, 16 Jur. 372;
straining orders generally, consult the Campbell v. Scott, n Sim. 31; Colburn
title INJUNCTION. v. Simms, 2 Hare 543; Kelly v. Morris,
Injunction in English Courts. In view L. R. i Eq. 697; Morris v. Ashbee, L.
of the present international copyright R. 7 Eq. 34; Tinsley v. Lacy, 32 L. J.
law, the practice of the English courts Ch. 535; Stannard v. Harrison, Pemb.
in regard to enjoining infringement Judg. (ist ed.) 288; Hotten v. News-
becomes of some interest. Forms for agents, etc., Co., I Seton ($th ed.) 573;
injunction in various cases of infringe- Kelly v. Hodge, r Seton (sth ed.) 572;
ment may be found in the English re- Hole v. Bradbury, 12 Ch. Div. 886;
ports, as follows: Smith v. Chatto, 23 W. R. 290; i Seton
Tonson v. Walker, 3 Swanst. 681; (sth ed.) 571; Warner. Lawrence, i Se-
Lewis v. Fullarton, 2 Beav. 14; Delf v. ton (sth ed.) 574; Boucicault v. Ward, i
Delamotte, 3 Kay & J. 581; Ward v. Seton (sth ed.) 575; Pollard v. Moll, I
Beeton, L. R. 19 Eq. 211; Hogg Seton ($th ed.) 576; Dicks v. Jackson,
v. Kirby, 8 Ves. Jr. 215; Ainsworth v. Pemb. Judg. (4th ed.) 468; Lewis v.
Bentley, 14 W. R. 630; Chappell v. Fullarton, 2 Beav. 6; Faden v. Stock-
Sheard, 2 Kay & J. 117; Warne v. See- dale, 8 Jur. 185, note,
bohm, 39 Ch. Div. 82. See i Seton 3. This form is copied from the
(5th ed.) 574; Clement v. Maddick, i record in the case of Blacks. Henry G.
Giff. 98; Prowettz'. Mortimer, 2 Jur. N. Allen Co., 42 Fed. Rep. 618.
499 'Volume 5.
6371. COPYRIGHT. 6371.
ing and in pursuance of the statutes of the United States, and good
and valid in law, whereby there was secured to and acquired by the
said Francis A. Walker, his heirs and assigns, the sole liberty of
printing, reprinting, publishing, completing, copying, executing, fin-
ishing and vending the said book for the term of twenty-eight years
from the time of recording the title thereof, to wit, from the said
thirteenth day of February, i8&!?; and that you, the said The Henry
G. Allen Company, defendant herein, have infringed the said copyright
and the rights of the complainants thereunder, by reproducing, copy-
ing, publishing and selling, and causing to be reproduced, copied,
published and sold, without the complainants' consent, copies of said
copyrighted book entitled "United States, Part III, Political Ge-
ography and Statistics ," as part of the twenty-third volume of a certain
book or publication entitled "Encyclopedia Britannica, Ninth Edition"
Now therefore, we do strictly command and perpetually enjoin you, v
the said The Henry G. Allen Company, your officers, agents, servants
and workmen, under the pains and penalties which may fall upon you
and each of you in case of disobedience, that you forthwith and for-
ever hereafter, desist and refrain from in any form or manner, directly
or indirectly, offering to reproduce, and from offering to reprint, and
from offering to copy and from in any manner whatsoever offering to
sell any copy or copies whatsoever of the said copyrighted book
entitled "United States, Part III, Political Geography and Statistics," or
any part or parts thereof; and from directly or indirectly, in any
form or manner, reproducing, printing, reprinting, copying, executing,
finishing, vending or selling, and from directly or indirectly, in any
form or manner, offering to reproduce, print, reprint, complete, copy,
execute, finish, vend or sell, any copies whatsoever of the book or
publication entitled " Encyclopedia Britannica, Ninth Edition" or any
other book or publication which shall contain or consist in part of
said copyrighted book entitled "United States, Part III, Political
Geography and Statistics" But nothing herein contained shall in any-
wise prohibit the sale by you, the said The Henry G. Allen Company,
of any book whatsoever published or issued by the owners of said
copyright, or their representatives.
Witness, the Honorable Melville W. Fuller, Chief Justice of the
United States of America, at the city of New York, in said Southern
District of New York, this nineteenth day of May, in the year of our
Lord one thousand eight hundred and ninety-three.
(SEAL) John A. Shields, Clerk.
Rowland Cox,
Complainants' Solicitor.
II. ACTION FOR STATUTORY PENALTIES.
1. On Copies of Infringing- Photograph.
Form No. 6371.'
1. This complaint is copied from the The penalty prescribed by this sec-
records in Falk v. Schumacher, 48 Fed. tion of one dollar for every sheet found
Rep. 222. The action is brought uu- in possession of defendant is affixed
der U. S. Rev. Stat. (1878), 4965. only when the sheets are shown to
500 Volume 5.
6371. COP Y RIGHT. 6371.
Circuit Court of ike United States for the Southern District of
New York,
Benjamin J. Folk \
against
Schumacher and Ett linger. )
The complainant complains and alleges:
First. That complainant is a citizen of the United States and a
resident therein and resides in the city, county and state of New
York and is the author, inventor, designer and proprietor of a certain
photograph and the negative thereof known as and entitled "Photo-
graph No. 23 of Lillian Russell by B. J. Folk, N. Y."
Second. That before the publication of said photograph and for
the purpose of copyrighting the same, complainant, in conformity
with the provisions of the Revised Statutes of the United States, on
the twenty-sixth day of February, 186$, deposited in the mail addressed
to the librarian of Congress at Washington, District of Columbia, a
printed copy of the title of said photograph for which he desired a copy-
right, and that he also, within ten days 1 from the publication thereof,
to wit, on the fourteenth day of March, iS89, deposited in the mail
addressed to the librarian of Congress at Washington, District of
Columbia, two complete printed copies of such photograph of the
best edition issued, and at the time of mailing such printed copy of
the title of said photograph, he forwarded to said librarian of Con-
gress at Washington, District of Columbia, the sum of fifty cents
for recording the title of said photograph, and that said librarian of
Congress did record the title of such copyrighted photograph in a
book kept for that purpose as required by section 4957 of the
Revised Statutes of the United States.
Third. That complainant gave notice of his copyright of said
photograph entitled " Photograph No. 23 of Lillian Russell by B. J.
Falk, N. Y." by printing and inscribing upon some portion of the
face or front of each of the several copies of said photograph the
following words: "1889, Copyrighted by B. J. Falk, New York"
Fourth. And complainant having in all things complied with the
conditions and provisions of the Revised Statutes of the United
States in such case made and provided, as aforesaid, thereby obtained
a copyright of the United States for said photograph in due form of
law, and there was granted and secured to him and he had sole liberty
of printing, reprinting, publishing, completing, copying, executing,
finishing and vending the same for the term of twenty-eight years
from the time of recording the title thereof by the librarian of Con-
gress as above set forth.
Fifth. On information and belief that the said defendant is a cor-
poration created and existing under the laws of the state of New
York, having its principal place of business in the city of New York
and does a general lithographic business; that said defendant, well
knowing the premises and the rights so secured to the complainant,
and without the consent of complainant, the proprietor of said copy-
have been discovered or detected in to the bringing of the suit. Bolles z/.
the possession of the defendant prior Outing Co. , 45 U.S. App. 449.
1. See supra, note 2, p. 471.
501 Volume 5.
6372. COPYRIGHT. 6372.
right, first obtained in writing signed in the presence of two or more
witnesses, and within two years next before the commencement of
this action, and after the recording of the title of said photograph
as aforesaid, did engrave, etch, work, copy, print, publish and import
in whole and in part copies of said copyrighted photograph entitled
as aforesaid, and knowing the same to be so printed, published and
imported, did sell and expose to sale great numbers contrary to the
statute in such case made and provided, contrary to sections 4952
and 4965 of the Revised Statutes of the United States and to the
great damage of the complainant, whereby and by force of the
statute said defendant forfeited to the complainant, the proprietor of
said copyright, every sheet thereof, to wit, twenty thousand thereof so
sold and exposed for sale, and that the value* of said sheets of said
copy is two hundred dollars. And that by reason of the premises said
defendant also further forfeited one dollar for every sheet of the same
found in its possession either printing, printed, copied, published,
imported or exposed for sale, and the complainant avers that there
were so found in possession of the defendant at the time of the com-
mencement of this suit twenty thousand of such copies, whereby there
accrued to the said complainant twenty thousand dollars, for the aggre-
gate of which said several sums, to wit, for the sum of twenty thou-
sand two hundred dollars, the complainant demands judgment against
the defendant with costs.
Isaac N. Falk,
Attorney for Complainant,
5 Beekman Street, New York City.
State of New York, \ gg .
City and County of New York. \
Benjamin J. Falk, being duly sworn, deposes and says, that he is
plaintiff in this action; that he has read the foregoing complaint and
knows the contents thereof; that the same is true to the knowledge
of deponent, except as to the matters therein stated to be alleged
on information and belief, and as to those matters he believes it to
be true.
B. J. Falk.
Sworn to before me thisyfrj/ day of April, i891.
(SEAL) F. Goodwin,
Notary Public, N. Y. Co.
2. For Falsely Imprinting: Notice.
Form No. 6372.'
Circuit Court of the United States for the Southern District of New
York.
1. This form is copied from the For allegations in a similar case,
records, in Rigney v. Raphael Tuck, where, however, the matter falsely
etc., Co., 77 Fed. Rep. 173. For the marked was not subject to copyright,
statute under which this action is see Rosenbach v. Dreyfuss, 2 Fed.
brought see 26 U. S. Stat. at Large, Rep. 217.
p. i io6. See also the complaint in In an action on a statute of this
Rigney v. Button, 77 Fed. Rep. 176. character, the party prosecuting must
502 Volume 5.
6372.
COPYRIGHT.
6372.
William J. Rigney* \
against > Complaint.
Raphael Tuck & Sons Company. )
The plaintiff, by A. Bell Malcomson, his attorney, compla4ns of the
defendant and says as follows:
I. That plaintiff is a citizen of the United States, residing in the
city of Brooklyn, New York, and is entitled to recover from defend-
ant the amounts hereinafter set forth, by virtue of the statutes of
the United States in such case made and provided, the facts in rela-
tion to which are hereinafter stated.
II. That defendant is a corporation formed under the laws of the
state of New York and carrying on the business in the city of New
York and elsewhere of printing and publishing books, prints and
other articles.
III. That as a first cause of action, upon information and belief,
plaintiff alleges that heretofore and on or about the first day of May,
\WQ, the defendant, at the city of New York, in the state of New
York, did publish and issue a certain book entitled " Father Tuck's
Nursery Rhymes," and in and upon said book did knowingly insert
and impress a false and untruthful notice that the same was copy-
righted, which notice was in the following words: " Copyright 1896
by Raphael Tuck 6- Sons, Ltd."*
allege every fact necessary to make
out his title and his competency to sue.
Ferrett v. Atwill, I Blatchf. (U. S.) 151.
1. The penalty imposed by section
it of the Copyright act of February 3,
1831 (4 U. S. Stat. at Large, 438), for
putting the imprint of a copyright
upon a work not legally copyrighted,
and given by the act to "the person
who shall sue for the same," cannot
be recovered in the name of more than
one person. And a declaration for
such penalty in the name of two per-
sons is bad on general demurrer. Fer-
rett v. Atwill, i Blatchf. (U. S.) 151.
2. The allegations of this paragraph
were held sufficient on demurrer, the
court ruling as follows:
"The first ground of the demurrer is
that the use which is alleged to have
been made of the notice of copyright is
consistent with a proper use of such
notice, and that it is not alleged with
sufficient clearness to have been a
wrongful use. For example, a book
may be made up of a quantity of maps,
or of musical compositions, or of en-
gravings or photographs, each one of
which was, before they were embodied
in book form, the subject of a separate
copyright, and is entitled to a copy-
right notice. The position of the de-
fendant is that it does not appear in
the complaint that the use which the de-
fendant made of the notice of copyright
was not the proper use which it might
have made. The allegations in regard
to the untruthfulness of the notice and
wrongful use which the defendant
made of it state the case in the lan-
guage of the statute, and recite the
facts which constitute a statutory cause
of action, and it was not necessary for
the pleader to negative all the sup-
posable matters of defense. The second
ground of demurrer is that the com-
plaint does not allege that the fictitious
notice was inserted or impressed at
any particular place, and that, for
aught that appears, the book might
have been printed in Canada and have
been brought here for sale. The com-
plaint alleges that at the city of New
York the defendant did publish and
issue a book, called " Father Tuck's
Nursery Rhymes," and did knowingly
insert and impress in and upon said
book false and untruthful notice. The
obvious meaning of the allegations is
that the publication and insertion of
the notice was at the city of New York.
The assertion contained in the whole
complaint is that the defendant, at
New York, published a book which it
had not copyrighted, and in or upon
which it knowingly inserted a false
notice of copyright. The third ground
of demurrer is that the complaint does
503
Volume 5.
6372. COPYRIGHT. 6372.
IV. That the said book, being a proper subject of a copyright, was
not copyrighted by the said "Raphael Tuck dr Sens, Ltd." or by
"Raphael Tuck <5r> Sons Company " or by the defendant [or by any
other person or persons and assigned to defendant] ; x and that the
notice impressed thereon by defendant was and is false and contrary
to the statutes of the United States in such case made and provided,
and more particularly to section 4963 of the Revised Statutes of the
United States.
V. That by reason of the premises and by force of the statute in
such case made and provided, and more particularly section 4963 of
the Revised Statutes of the United States, an action hath accrued
to the plaintiff to demand and have from the defendant the sum of
one hundred dollars forfeited as aforesaid by virtue of said statute,
the said one hundred dollars being part and parcel of the sum herein
demanded.
VI. That as a second cause of action, upon information and belief,
plaintiff alleges, that heretofore and on or about the fifteenth day of
May, i896, the defendant, at the city of New York, in the state of
New York, did publish and issue a certain book entitled ''Father
Tuck's Nursery Rhymes" and in and upon said book did knowingly
insert and impress a false and untruthful notice that the same was
copyrighted, which notice was in the following words: "Copyright
1896 by Raphael Tuck & Sons, Ltd. " 2
VII. That the said book, being a proper subject of a copyright,
was not copyrighted by the said "Raphael Tuck &* So/is, Ltd." or by
"Raphael Tuck cr Sons Company" or by the defendant [or by any
other person or persons and assigned to defendant] j 1 and that the
notice impressed thereon by defendant was and is false and contrary
to the statutes of the United States in such case made and provided,
not allege that the false notice was in- fendant had not obtained a copyright,
serted on the title-page or the page There is an averment that the book
immediately following. Section 4963 was not copyrighted by the defendant
does not seem to require that the false corporation under either of its names,
notice must be inserted upon one of but that allegation is not equivalent to
the pages named in section 4962. It the averment that it had not obtained a
is true that the owner of the copyright copyright. If the book was copyrighted,
cannot maintain an action for infringe- and if the defendant was the owner of
ment unless he inserted his notice at a the copyright by assignment, such a
specified place, but it does not appear state of facts was consistent with the
from section 4963 that a false notice of averments of the complaint. It is true
copyright cannot be punished if it is that there is an averment that the de-
placed upon the second page after the fendant inserted a false and untruthful
title-page, or is placed upon the cover notice that the book was copyrighted,
of the book, and is only punishable ' which notice was in the following
when placed upon the title-page or the words,' etc.; but when the pleader
page which immediately follows. The states wherein the falsehood con-
language of the section is more broad, sisted he does not state that it consisted
and seeks to prevent the insertion of a in the fact that the book was not copy-
false notice ' in or upon ' a book." righted, but that it was not copyrighted
1. The addition of the words enclosed by the corporation which was mentioned
by [ ] remedies the only objection to the in the notice. The objection is a nar-
complaint sustained by the circuit row one, but it should be removed by
court. On this point the court ruled: amendment."
"Another objection to the complaint is 2. See supra, note 2, p. 503.
that there is no averment that the de-
604 Volume 5.
6372. COPYRIGHT. 6372.
and more particularly to section 4963 of the Revised Statutes of the
United States.
VIII. That by reason of the premises and by force of the statute
in such case made and provided, .and more particularly section 4963
of the Revised Statutes of the United States, an action hath accrued
to the plaintiff to demand and have from the defendant the sum of
one hundred dollars forfeited as aforesaid by virtue of said statute,
the said one hundred dollars being part and parcel of the "sum herein
demanded.
IX. That as a third cause of action, upon information and belief,
plaintiff alleges that heretofore and on or about thejirstdayoffune,
i896, the defendant, at the city of New York, in the state of New
York, did publish and issue a certain book entitled "Father Tuck's
Nursery Rhymes," and in and upon said book did knowingly insert
and impress a false and untruthful notice that the same was copy-
righted, which notice was in the following words: "Copyright 1896 by
Raphael Tuck & Sons, Ltd."*
X. That the said book, being a proper subject of a copyright, was
not copyrighted by the said "Raphael Tuck 6 Sons, Ltd." or by
"Raphael Tuck & Sons Company," or by the defendant [or by any
other person or persons and assigned to defendant] ; 2 and that the
notice impressed thereon by defendant was and is false and contrary
to the statutes of the United States in such case made and provided,
and more particularly to section 4963 of the Revised Statutes of
the United States.
XI. That by reason of the premises and by force of the statute
in such case made and provided, and more particularly section 4963
of the Revised Statutes of the United States, an action hath accrued
to the plaintiff to demand and have from the defendant the sum of
one hundred dollars, forfeited as aforesaid by virtue of said statute,
the said one hundred dollars being part and parcel of the sum herein
demanded.
XII. That as a fourth cause of action, upon information and belief,
plaintiff alleges that heretofore and on or about the fifteenth day of
June, iS96, the defendant, at the city of New York, in the state of
Neiu York, did publish and issue a certain book entitled "Father
Tuck's Nursery Rhymes," and in and upon said book did knowingly
insert and impress a false and untruthful notice that the same was
copyrighted, which notice was in the following words: "Copyright
1896 by Raphael Tuck 6- Sons, Ltd"*
XIII. That the said book, being a proper subject of a copyright,
was not copyrighted by the said "Raphael Tuck 6 Sons, Ltd.," or by
" Raphael Tuck & Sons Company," or by the defendant [or by any
other person or persons and assigned to defendant]; 2 and that the
notice impressed thereon by defendant was and is false and contrary
to the statutes of the United States in such case made and provided,
and more particularly to section 4963 of the Revised Statutes of the
United States.
XIV. That by reason of the premises and by force of the statutes
1. See supra, note 2, p. 503. 2. See supra, note I, p. 504.
505 Volume 5.
6373. COPYRIGHT. 6373.
in such case made and provided, and more particularly section 4963
of the Revised Statutes of the United States, an action hath accrued
to the plaintiff to demand and have from the defendant the sum of
one hundred dollars, forfeited as aforesaid, by virtue of said statute,
the said one hundred dollars being part and parcel of the sum herein
demanded.
XV. That as a fifth cause of action, upon information and belief,
plaintiff alleges that heretofore and on or about the twenty-fifth day
of June, \W6, the defendant, at the city of New York, in the state of
New York, did publish and issue a certain book, entitled "Father
Tuck's Nursery Rhymes" and in and upon said book did knowingly
insert and impress a false and untruthful notice that the same was
copyrighted, which notice was in the following words: "Copyright
1896 by Raphael Tuck 6- Sons, Ltd"*
XVI. That the said book, being a proper subject of a copyright,
was not copyrighted by the said "Raphael Tuck & Sons, Ltd.," or by
"Raphael Tuck <5r* Sons Company," or by the defendant [or by any
other person or persons and assigned to defendant] ; 2 and that the
notice impressed thereon by defendant was and is false and contrary
to the statutes of the United States in such case made and provided,
and more particularly to section 4963 of the Revised Statutes of the
United States.
XVII. That by reason of the premises, and by force of the statutes
in such case made and provided, and more particularly section 4963
of the Revised Statutes of the United States, an action hath accrued
to the plaintiff to demand and have from the defendant the sum of
one hundred dollars forfeited as aforesaid by virtue of said statute,
the said one hundred dollars being part and parcel of the sum herein
demanded.
Wherefore, plaintiff demands judgment against the defendant for
the sum oifive hundred dollars, together with the costs of this action.
A. Bell Malcomson, Attorney for Plaintiff.
State of New York, \
\ cc
City and County of New York. }
William J. Rigney, being duly sworn, deposes and says: That he
is the plaintiff herein; that he has read the foregoing complaint and
knows the contents thereof, and that the same is true of his own
knowledge, except as to those matters therein stated to be alleged
on information and belief, and as to those matters he believes it to
be true.
William J. Rigney.
Subscribed and sworn to before me th\s first day of July, iS96.
Edmund Congar Brown,
Notary Public, Kings Co.
III. ACTION FOR VIOLATION OF COMMON-LAW RIGHT IN
UNPUBLISHED MANUSCRIPT.
Form No. 6373.*
1. See supra, note 2, p. 503. records in Press Pub. Co. v. Monroe.
2. See supra, note i, p. 504. 164 U. S. 105. It will not be found in
3. This complaint is taken from the the reported case.
506 Volume 5.
6373. COPYRIGHT. 6373.
[Circuit Court of the United States for the Southern District of
Nav York.
Harriet B. Monroe, plaintiff, )
against > Complaint.
The Press Publishing Co., defendant. )
The complainant, by George H. Yeaman, her attorney, complains
of the defendant and says as follows:] 1
Now, and at all the times hereinafter to be mentioned, the plaintiff is
and has been a citizen of the state of Illinois, and a resident therein,
to wit, in the city of Chicago.
The defendant now is and at all the times hereinafter to be mentioned
has been a citizen of the state of New York, and a resident therein,
to wit, in the city of New York, that is to say, the defendant is and
at all times aforesaid has been, a corporation aggregate, created and
existing by force of and under the laws of the aforesaid state of New
York, and doing business therein, and having its chief place of busi-
ness in the aforesaid city.
The business of this defendant now is and at all the times herein-
after to be mentioned has been that of editing, publishing, selling
and distributing a news-sheet or news-paper, called the World. Now
and at all times aforesaid, and for many years past, this news-paper
has had a very large and widely extended circulation, particularly it
has and has had a great number of purchasers and readers in the
city of Chicago.
Prior to September, i&92, this plaintiff had composed and written
out in manuscript, but had not published, a certain lyrical ode or
song, the work of her intellect and imagination, which was of value
to her as a literary product. On or about the twenty-third of Septem-
ber aforesaid, a certain society or committee styled the " Committee on
Ceremonies of the World's Columbian Exposition," and composed of
certain members of the Chicago Directory and certain members of
the National Commission, the two bodies jointly governing said
exposition, made an agreement with the plaintiff, wherein and
whereby, for a good consideration, they were licensed by her to use
and were given exclusive use of said ode for the following purposes,
and these only: That is to say, to have the same read or declaimed
or sung, or partly read and partly sung, on the public occasion of
the dedicatory ceremonies of the World's Columbian Exposition,
which ceremonies were to be performed in the city of Chicago, on the
twenty-first day of October next thereafter:
This exclusive right of use was limited by the occasion aforesaid,
and by the time and place aforesaid.
The general ownership of the literary product remained in the
plaintiff, who had the right of unlimited publication from and after
the date aforesaid and the right of publication or of representation
on said twenty-first day of October in other cities than Chicago.
The right of publication and of public representation was of great
value to this plaintiff, not only because the ode was, in itself, a pro-
1. The matter within [ ] does not appear in the printed record of the case,
but has been added to render the form complete.
507 Volume 5.
6373. COPYRIGHT. 6373.
duction worthy to bestow honor and profit upon its author, but
because it had been greatly distinguished in having been chosen as
the commemorative ode to be read and sung on an occasion of such
celebrity as were the dedicatory ceremonies of the Columbian
Exposition.
The ode had been composed or written months before, and as
early as May preceding. During the ten days preceding the twenty-
third day of September aforesaid, the date when the plaintiff granted
the aforesaid license to the Columbian committee, she delivered to
the same the manuscript of her ode, for the purposes expressed in
the contract of license, and with the injunction that the manuscript
should be held secret, in order that the plaintiff's right of property
in the literary product should be preserved inviolate, and especially
that premature publication should be avoided. The utmost care was
taken both by the plaintiff and by the committee on ceremonies to
prevent or forestall piratical attempts on the part of news-papers.
Nevertheless, this defendant, through its agents and servants,
some time between September 14 and September 23, i8##, got access
to the room or rooms of this committee, and stole or otherwise un-
lawfully procured the manuscript aforesaid, or a copy thereof, and
sent the same to its publication bureau in the city of New York.
As soon as it was made known to the plaintiff that the World
possessed a copy and intended to publish the poem, she sent or
caused to be sent to the World office in the city of New York, that is
to say, to the chief bureau of the defendant, where its editors and
publishers and responsible officers were, and to all other news-papers
in correspondence with said Associated Press, a message by way of
the telegraph, which message distinctly announced that this ode, and
every manuscript copy thereof, were the exclusive property of the
author; that it would be a gross violation of the author's rights to
prematurely publish the same, and other cautions of the same import.
This message was received by the defendant, which quickly acknowl-
edged the same, utterly defying the plaintiff's right and saying in
part what follows:
"We (that is, the defendant) will take our chances on it. Explain
to her (this plaintiff) that the World could not miss an opportunity
to give the public such a grand poem."
Accordingly, on September 25th aforesaid, this defendant published,
in what is styled a " Sunday Edition" the aforesaid ode, or what pur-
ported to be the same, to the great and irreparable harm of the
plaintiff, to wit, there appeared at the head of the first column, on
the first page of the aforesaid " Sunday Edition " an announcement
which read as follows:
"The World's Fair Ode.
A Tribute to Columbia which will be Read and Sung at the Dedi-
cation Ceremonies."
This was followed by what purported to be an analysis of the
poem, which analysis was grotesquely incorrect and calculated to
produce a false and even ludicrous impression of the work. Next
followed the aforesaid ode, or rather a caricature of it, through
nearly four columns of the printed sheet. This piratical publication
508 Volume 5.
6373. COPYRIGHT. 6373.
contained no less than sixty-two errors, some of them so important
as to make portions of the poem appear meaningless.
This piratical publication -appeared nearly one month before the
occasion of the public ceremonies in Chicago. It was published
throughout the whole country, as was hereinbefore alleged, on the
twenty-fifth day of September. On this day, as defendant itself boasted,
there was a sale of one-half million of copies of its journal.
As a consequence of this piratical and premature publication, the
rehearsal of the ode on the anniversary festival awakened much less
interest than it would otherwise have done, and the ode itself was
much less favorably received than it would have been, if it had been
correctly presented for the first time on so distinguished an occasion.
This result was emphasized and deepened by the fact that the pub-
lication was so full of errors that, in itself, it reflected upon the
original work great discredit.
Another consequence of the defendant's misdeeds was that the
plaintiff was deprived of opportunity to license the reading or singing
of the ode in other large cities than Chicago on the same anniversary
and on subsequent days, because the acts of the defendant herein
complained of had made the ode common property. The aforesaid
wrongful acts of the defendant have deprived the plaintiff of gains
she would otherwise have received in the sale of her ode.
These aforesaid wrongful acts have also afflicted damage upon the
plaintiff's reputation as an author. Prior to the date of the aforesaid
piratical publication she had written and published many essays, both
in prose and verse, and she enjoyed a favorable and worthy reputa-
tion, some of her poems having been published and widely circulated.
As a further element of damages, this plaintiff insists that the
printing and publication aforesaid, and the false descriptive sketch,
and the absurd analysis of the poem which accompanied it, was
a wilful, wanton, defiant and unlawful trespass on the rights of this
plaintiff.
Over this offensive and vulgar notoriety, which was thus flagrantly
thrust upon her, the plaintiff was subjected to much shame and mor-
tification and great personal annoyance.
Wherefore, the plaintiff alleges damages in the sum of twenty-five
thousand dollars, and prays that she may have judgment against the
defendant to the amount, besides costs.
\George H. Yeaman,
Attorney for Plaintiff.] 1
{(Verification^
1. The matter within [ ] does not 2. For form of verification to corn-
appear in the record of the case, but plaint in the United States circuit
has been added to complete the form, court consult the title VERIFICATIONS.
509 Volume 5.
CORAM NOBIS.
See the title ERROR, WRIT OF.
CORAM VOBIS.
Sa the title ERROR, WRIT OF.
CORONER'S INQUESTS.
Br FKAJKXS X. HEVXESST.
LTE THAT ttQUEST IS UNNICESSA1Y, 510.
i. By Ctfrwaer, 5101
. Bj Jfeduml Examiner. 511.
511.
A, 514. _
OF wmrESS, 5:6
V. IVQUISTTIOM, 516.
VL WABXA9T OF AKMST. 519.
TIL WAERAITT OF COMMTTMHTT, 521.
CBOSS-R]
crwmtfttJ vntA tkf smtjctt of B*H mml Reagmsmmce, see He
title BAIL AND RECOGNIZANCE^ ToL 3, p. i.
Fir F*rms ff PIea*gs i* Actions 0m * Bail Bond or Re&ginxmmce, see
ike title BONDS AND UNDERTAKINGS (ACTIONS
0A'). ToL 3, p. 5*8.
Fir matters if Practice^ see tke title CORONERS INQUESTS^
5 EXCTCLOF^DIA OF PLEABECG AXD PRACTICE, p. 38.
L fiffff^^fl^r* THAT I9QUEST IS UOECISSABT.
1. By Coroner.
Form Mt 6374.
OL J. Gm. Sm. (iSgsX P. 89*. S&)
\,Jfk* Smith, one of the coroners of die county of Bergen, baring
notice of the death <AJok*Dot. and baring viewed the dead body of
die said Jkn Die, and made qairj respecting bis death, do
510 *. -._-.- f
6375. CORONER'S INQUESTS. 6376.
hereby certify, that I am satisfied no guilt attaches to any person
or persons by reason of the said death, and that an inquest is
unnecessary. 1
John Smith, Coroner.
2. By Medical Examiner.
Form No. 6375.
(Conn. Gen. Stat. (1888), g 2006.,
I, the undersigned, John Smith, medical examiner, having notice of
the death of John Doc, a white (or colored) male, twenty-three years
old, late of the city of Bangor, state of Maine? who on the eighth
day of May, A. D. i8#7, was found dead (or died) in the town of
Middlesex, having viewed the body of said deceased, and made '
immediate inquiry concerning his death, do hereby certify that said
John Doe died in Middlesex on the eighth day of May. A. D. iSW, from
natural cause, 4 and that I am satisfied that the said death was not
caused by the criminal act, omission or carelessness of any other
person or persons, and that an inquest is unnecessary. In accordance
with the statute I have delivered the body of said deceased to his
friends (or to the town authorities) for burial.
Dated May 8, iS97.
John Smith, Medical Examiner.
II. VENIRE. 5
Form No. 6376.
(Fla. Rev. Stat. (1892), p. 913.)
State of Florida, \
Leon County. \
In the name of the State of Florida To any constable of said county :
Whereas, I have been notified that the dead body of John Doe is
1. In cases where it shall have be- in its identification, always stating sex.
come necessary for the coroner to bury color, apparent age, color and cut of
the dead body, the certificate shall con- hair, beard, color of eyes, and all
tinue and say. " That the said deceased special marks or deformities of body,
has no friends who appear to take 4L Or suicide or accident, as the case
charge of and bury his (ot; ker) body, may be, stating manner of suicide or
nor. as I can ascertain, has he (or shf] nature of accident.
left property, sufficient and within reach 5. Requisites of Venire. The form of
of the overseers of the poor, to defray venire prescribed in various states is
the expenses thereof; I have therefore substantially like that set out infra,
buried the same." Forms Nos. 6376 to 6379. For statutes
2. This certificate must be mailed or relating to the venire see as follows:
delivered to the county coroner im- Aritona. Pen. Code (1887), 2309.
mediately after the medical examiner California. Pen. Code (1897), 1510.
is satisfied that the death has not been Colorado. Mills' Anno. Stat. (1891),
caused by the fault of another. Conn. 870.
Gen. Stat. (iSSS), 2006. Connecticut. Gen. Stat. (l88S).
3. Or. if an unknown person, state 2009.
that fact and carefully describe the Delatoare. Laws (1893), p. 261.
body, its clothing, and articles found Florida. Rev. Stat. (1892), 3011.
on or near it which may be of service Idakf. Rev. Stat. (1887). 8377.
511 Volume 5.
6376.
CORONER'S INQUESTS.
6376.
lying at {Here describe the place where the body is found}, in said
county, and I have good reason to believe that his death was caused
by the criminal act or negligence of another {Here set out the grounds
of such opinion);' 1 you are hereby required to forthwith summon a jury
of good and lawful men of said county, not less than six in all, to
Illinois. Starr & C. Anno. Stat.
(1896), p. 981, par. 13.
Iowa. Code (1897), 515.
Kansas. Gen. Stat. (1889), 1780.
Kentucky. Stat. (1894), 528.
Maine. Rev. Stat. (1883), c. 139, I.
Maryland. Pub. Gen. Laws (1888),
art. 22.
Michigan. How. Anno. Stat. (1882),
9584, 9595-
Mississippi. Anno. Code (1892), 816.
Missouri. Rev. Stat. (1889), 8 2442.
Montana. Pen. Code (1895), 2790.
Nebraska. Comp. Stat. (1897),
2198, 2199.
Nevada. Gen. Stat. (1885), 2256.
New Hampshire. Pub. Stat. (1891),
c. 262, 3.
New Jersey. Gen. Stat. (1895), p.
898, 7.
North Carolina. Cote (1883) 8 657.
North Dakota. Rev. Codes (1895),
2009, 2010.
Oregon. Hill's Anno. Laws (1892),
1660.
South Carolina. Crim. Stat. (1893),
580.
Utah. Rev. Stat. (1898), 1223,
1224.
Virginia. Code (1887), 3938.
West Virginia. Code (1887), p. 932,
I-
Wisconsin. Sanb. & B. Anno. Stat.
(1889), | 4866.
Wyoming. Rev. Stat. (1887), 1879.
Oath of Jurors. The statutes pre-
scribing the form and method of ad-
ministering the oath of the jurors are
as follows:
Alabama. Crim. Code (1886),
4803.
Arizona. Pen. Code (1887), 2310.
California. Pen. Code (1897), 1511.
Colorado. Mills' Anno. Stat. (1891),
871.
Connecticut. Gen. Stat. (1888),
3264.
Delaware. Laws (1893), p. 261.
Florida. Rev. Stat. (1892), 3015.
Idaho. Rev. Stat. (1887), 8378.
Illinois. Starr & C. Anno. Stat.
(1896), p. 982, par. 16,
Iowa. Code (1897), 519.
Kansas. Gen. Stat. (1889),
Kentucky. Stat. (1894), 528.
Maine. Rev. Stat. (1883), c. 139, 3.
Michigan, How. Anno. Stat. (1882),
9585, 9595-
Mississippi. Anno. Code (1892), 819.
Missouri. Rev. Stat. (1889), 8 2446.
Montana. Pen. Code (1895), \ 2791.
Nebraska. Comp. Stat. (1897), 2201.
Nevada. Gen. Stat. (1885), 2258.
New Hampshire. Pub. Stat. (1891),
c. 262, 7.
New Jersey. Gen. Stat. (1895), p.
899, 10.
North Carolina. Code (1883), 657.
North Dakota. Rev. Codes (1895),
2OII.
Oregon. Hill's Anno. Laws (1892),
1661.
South Carolina. Crim. Stat. (1893),
583.
Tennessee. Code (1896), 7278.
Utah. Rev. Stat. (1898), 1226.
Virginia. Code (1887), 3941.
West Virginia. Code (1891), p. 949,
3-
Wisconsin. Sanb. & B. Anno. Stat.
(1889), 4869.
Wyoming. Rev. Stat. (1887), 1880.
Charge to Jurors. For statutes relat-
ing to the coroner's charge to the jurors
see as follows:
Florida. Rev. Stat. (1892), 3016.
Georgia. 3 Code (1895), 1262.
Maine. Rev. Stat. (1883), c. 139. 8.
Mississippi. Anno. Code (1892),
821.
Missouri. Rev. Stat. (1889), 2447.
New Jersey. Gen. Stat. (1895), p. 899,
".
New Hampshire. Pub. Stat. (1891),
c. 262, 9.
South Carolina. Crim. Stat. (1893),
584-
1. Grounds for Inquest. Unless there
shall appear to the satisfaction of the
coroner, after considering the circum-
stances attending the cause of death,
that he has good reason to believe that
the death was caused by the criminal act
and negligence of another, no inquest
shall be held nor shall any compensa-
tion be allowed fora jury, and if in the
opinion of the coroner an inquest ought
to be held, he shall include the grounds
of that opinion in the order for the jury.
Fla. Rev. Stat. (1892), 3010.
512
Volume 5.
6377. CORONER'S INQUESTS. 6378.
appear before me immediately at the place where said body is lying
in said county, to inquire, upon a view of the said body, how and in
what manner and by whom he came to his death.
Given under my hand and seal this tenth day of May, A. D. iS97.
Charles Poe. (SEAL)
Coroner.
Form No. 6377.
(Iowa Code (1897), 517.)
State of Imva, \
Allamakee County. J
To any peace officer of said county:
In the name of the state of Iowa you are hereby required to sum-
mon forthwith three electors of your county, to appear before me at
{name the place), at (name the day and hour or say forthwith), then and
there to hold an inquest upon the dead body of John Doe, there lying,
and find by what means he died.
Witness my hand this tenth day of June, A. D. i S97.
George Jones,
Coroner of Allamakee County.
Form No. 6378.
(Me. Rev. Stat. (1883), c. 139, i.) 1
(SEAL) To either of the constables in the town of Paris, 2 in the
county of Oxford, Greeting:
In the name of the State of Maine, you are hereby required
immediately to summon six good and lawful men of said town of
Paris, to appear before me, one of the coroners of said county of
Oxford, at the dwelling-house of John Smith, within said town, at the
hour of eleven A. M., then and there to inquire upon and view the body
of John Doe, there lying dead, how and in what manner he came to
his death. Fail not herein at your peril.
Given under my hand and seal, at Oxford, the ninth day of April,
A. D. 1 897.
Charles Francis.
1. In New Hampshire the coroner is- on the tenth day of April, at ten o'clock
sues a summons, directed to three in the forenoon, then and there to in-
reputable persons, one of whom must quire, upon a view of the body of John
be a justice of the peace. The form Smith (or a person unknown), there lying
set out in N. H. Pub. Stat. (1891), 3, dead, how and in what manner he
is as follows: came to his death. Fail not of appear-
" The State of New Hampshire. ance at your peril.
Stratford, ss. To John Doe, Richard Given under my hand and seal, at
Roe and Frank Smith: Madbury, in said county, the ninth day
(SEAL) In the name of the state of of April, 1897.
New Hampshire, you are hereby re- John Ray, Coroner."
quired to appear before me, John Ray, 2. The same or an adjoining town in
one of the coroners of the county of the same county. Me. Rev. Stat. (1883),
Strafford, at the dwelling-house of c. 139, I.
Ralph Jones, in the town of Madbury,
5 E. of F. P. 33. 513 Volume 5.
6379.
CORONERS INQUESTS.
6379.
Form No. 6379.
(N. J. Gen. Stat. (1895), p. 898, 7.)'
Bergen county, to wit: The state of New Jersey to any of the con-
stables of the said county:
You are required immediately upon sight hereof, to summon six 2
good and lawful men of the said county of Bergen to be and appear
before me, John Smith, one of the coroners (or justices} 3 of the county
aforesaid, at 81 Pearl street, Hackensack, in the said county, on the
second day of June, i8#7, at the hour of nine o'clock in the/0mioon of
the same day, then and there to inquire of, do and execute all such
things as, on behalf of the state, shall be lawfully given them in
charge touching the death of John Doe (or a person unknown). And
be you then there to certify what you shall have done in the premises,
and further to do and execute what, in behalf of the said state, shall
be then and there enjoined upon you.
Given under my hand and seal, at Hackensack, in said county,
the first day of June, in the year of our Lord one thousand eight
hundred and ninety-seven.
(SEAL) John Smith, Coroner.
III. SUBPffiNA. 4
1. Missouri. Substantially the same
form, drawn under Mo. Rev. Stat.dSSg),
2442, is given in Mo. Rev. Stat. (1889),
p. 2263, No. 151. This form, however,
is not under seal.
2. The jury shall consist of six jurors.
N. J. Gen. Stat. (1895), p. 903, 37.
3. A justice of the peace is only author-
ized to act as a coroner when a coroner
cannot be had in due time to take the
inquest. If the condition of the dead
body should be such that it be mani-
festly improper, in the judgment of
ordinary men, to defer its burial long
enough to notify a coroner, in such case
the justice would be authorized to act.
The fact that a justice may be more
conveniently located, that he has re-
ceived first notice, that he has per-
formed in good faith the first official
act believing that a coroner could not
be had in due time no one of these
facts, or all of them together, will
authorize a justice to act when it ap-
pears plainly that a coroner might
have been had in due time. Chadwick
v. Errickson, 40 N. J. L. 159.
4. For forms of subpoena, generally, con-
sult the title SUBPCENA, and for statutes
relating especially to the coroner's sub-
poena see as follows:
Arizona. Pen. Code (1887), 2311.
Arkansas. Sand. & H. Dig. (1894),
California. Pen. Code (1897),
1512.
Colorado. Mills' Anno. Stat. (1891),
872.
Connecticut. Gen. Stat. (1888),
2016.
Delaware. Laws (1893), p. 262.
Florida. Rev. Stat. (1892), 3018.
Idaho. 'Rev. Stat. (1887), 8379.
Illinois. Starr & C. Anno. Stat.
(1896), p. 982, par. 18.
Iowa. Code (1897), 520.
Kansas. Gen. Stat. (1889), 1782.
Maine. Rev. Stat. (1883), c. 139,
Michigan. How. Anno. Stat. (1882),
9586, 9595.
Mississippi. Anno. Code (1892),
818.
Missouri. Rev. Stat. (1889), 2449.
Montana. Pen. Code (1895), 2792.
Nebraska. Comp. Stat. (1897),
2203.
Nevada. Gen. Stat. (1885), 2259.
New Hampshire. Pub. Stat. (1891),
c. 262, 8.
New Jersey. Gen. Stat. (1895), p.
899, 12.
North Dakota. Rev. Codes (1895),
2012.
Ohio. Bates' Anno. Stat. (1897),
Oregon. Hill's Anno. Laws (1892),
8 1662.
514 Volume 5.
6380. CORONER'S INQUESTS. 6381.
Form No. 6380.
(Mo. Rev. Stat.'(i889), p. 2263, No. 153.)'
State of Missouri, \
County of art on. j
The State of Missouri to John Ren, John Smith and John Pen,
Greeting:
You are hereby commanded to appear forthwith before me, Henry
C. Collins, coroner of the county of fiarton, and an inquest now sit-
ting at Lamar, in said county, to be examined, and to declare your
knowledge concerning the manner in which John Jones (or a certain
person unknown}, there lying dead, came to his death, and all other
matters on which you shall be examined; and hereof fail not at your
peril.
Given under my hand, this tenth day of March, \W8.
Henry C. Collins, Coroner
Form No. 6381.
(Cook's N. Y. Code Crim. Proc. (1891), p. 481, No. 271.)
State of New York, j gg
County of New York. \
In the name of the People of the State of New York.
The People of the State of New York to Charles Jones, George Davis
and William Ross:
We command you and each of you, that all excuses and business
being laid aside, to appear in your proper persons before the under-
signed, one of the coroners of said county of New York, No. 316 Sixth
avenue, in the city of New York, in said county, on the tenth day of
South Carolina. Crim. Stat. (1893), Mississippi. Anno. Code. (1892),
587. 818.
Rhode Island. Gen, Laws (1896), c. Missouri. Rev. Stat. (1889), 2450.
287, 18. Nebraska. Comp. Stat. (1897),
Tennessee. Code (1896), 7279. 2204.
Utah. Rev. Stat. (1898), 1227. New Hampshire. Pub. Stat. (1891),
Virginia. Code (1887), 8 3939- c. 262, II.
West Virginia. Code (1891), p. 949, New Jersey. Gen. Stat. (1895), p.
Si- 899, 12.
Wisconsin. Sanb. & B. Anno. Stat. North Dakota. Rev. Codes (1895),
(1889), 4870. 2013.
Wyoming. Rev. Stat. (1887), 1881. Ohio. Bates' Anno. Stat. (1897),
Oath of Witnesses. For statutes re- 1221.
latingto the oath to be administered to South Carolina. Crim. Stat. (1893),
witness see as follows: 59.
Arkansas. Sand. & H. Dig. (1894), Utah. Rev. Stat. (1898). 1228.
753- Virginia. Code (1887), 3942.
Colorado. Mills' Anno. Stat. (1891), West Virginia. Code (1891), p. 950,
873. 4-
Florida. Rev. Stat. (1892), 3018. Wisconsin. Sanb. & B. Anno. Stat.
Iowa. Code (1897), 520. (1889), 4871.
Kansas. Gen. Stat. (1889), 1783. Wyoming. Rev. Stat. (1887), 1882.
Michigan. How. Anno. Stat. (1882), 1. Missouri. Rev. Stat. (1889),
9587, 9595- 2449-
515 Volume 5.
6382. CORONER'S INQUESTS. 6383.
May, 1 897, at nine o'clock A. M. on that day, to give evidence con-
cerning the death si John Roe. Hereof fail not at your peril.
Dated at New York this ninth day of May, iS97.
John Smith, Coroner.
IV. EXAMINATION OF WITNESS.
Form No. 6382.
(Cook's N. Y. Code Crim. Proc. (1891), p. 483, No. 279.)'
State of New York, \
County of New York. \ ss '
Examination of witnesses produced, sworn and examined on this
eleventh day of May, at No. 213 Sixth avenue, New York City, before
John Smith, coroner, George Jones, Frank Ross, (Here set forth the
names of the jurors), good and lawful men of said county, duly sum-
moned and sworn by the said coroner to inquire how and in what
manner and when and where John Doe came to his death and who
such person was, and into all the circumstances attending such death,
and to make true inquisition according to the evidence or arising
from the investigation of the body.
Richard Roe, being produced and sworn, says that: (Here insert his
testimony).
Richard Roe..
Subscribed and sworn before me this eleventh day of May, iS97.
John Smith, Coroner.
(Add also evidence of other witnesses in a similar manner.}
I do hereby certify that the testimony of 'the several witnesses
appearing upon the foregoing inquest was reduced to writing by me,
and the same subscribed by said witnesses in my presence, and that
the said testimony is the whole of the testimony taken on such
inquest, and that the same is correctly stated as given by the wit-
nesses respectively.
Dated at New York this eleventh day of May, iS97.
John Smith, Coroner.
V. INQUISITION. 2
Form No. 6383.
(Cook's N. Y. Code Crim. Proc. (1891), p. 483, No. 278.)
State of New York, \
City and County of New York, f '
An inquisition taken at No. 218 Sixth avenue in the city of New
1. This examination is to be annexed 2. The form of inquisition prescribed
to the inquisition and filed therewith in many of the states is substantially
by the coroner, or under his direction, like that set forth infra, in Forms No.
in the office of the clerk of the court of 6383 106385. For the various statutes
sessions in the county, or of a city relating to the inquisition see as fol-
court having power to inquire into the lows:
offense by the intervention of the grand California. Pen. Code (1897),
jury. N. Y. Code Crim. Proc., 778. 1514.
516 Volume 5.
6383.
CORONER'S INQUESTS.
6383.
York, in the county of New York, on the tenth day of May, iS97,
before me, John Smith, one of the coroners of said county aforesaid,
on the view of the body of John 'Doe then and there lying dead, upon
the oaths and affirmations of (Here set forth the names of the jurors],
good and lawful men of the state of New York, duly chosen, who
being then and there duly sworn and charged to inquire, on behalf
of the people of said state, where, when, how and after what man-
ner the said John Doe came to his death, do, upon their oaths and
affirmations, say that the said John Doe (Here state the findings of the
jury with particularity}.*
Colorado. Mills' Anno. Stat. (1891),
875-
Delaware. Laws (1893), p. 262.
Florida. Rev. Stat. (1892), 3020.
Iowa. Code (1897), 521.
Kansas. Gen. Stat. (1889), 1785.
Maine. Rev. Stat. (1883), c. 139, 9.
Michigan. How. Anno. Stat. (1882),
9590.
Minnesota. Stat. (1894), 850.
Montana. Pen. Code (1895), 2794.
Nebraska. Comp. Stat. (1897), 2206.
Nevada. Gen. Stat. (1885), 2261.
North Carolina. Code (1883), 657.
Oklahoma. Stat. (1893), 1751.
Oregon. Hill's Anno. Laws (1892),
1664.
Rhode Island. Gen. Laws (1896),
c. 287, 19-
Tennessee. Code (1896), 7286.
Utah. Rev. Stat. (1898), 1231.
Virginia. Code (1887), 3943,
West Virginia. Code (1891), p. 950,
5-
Wisconsin. Sanb. & B. Anno. Stat.
(1889), 4874.
Wyoming. Rev. Stat. (1887), 83.
1. Statement of Finding Generally.
The inquisition must set forth who the
person killed or wounded is, and when,
where and by what means he came to
his death or was wounded, and, if he
was killed or wounded or his death
occasioned by the act of another by
criminal means, who is guilty thereof
insofar as by such inquisition they have
been able to ascertain. N. Y. Code
Crim. Proc. , 777.
Bullet Wound. " Came to his death
by a bullet fired by a certain Richard
Roe on the tenth day of May, 1897, at
the corner of ajrd street and Sixth
avenue in the city of New York, and
that said bullet was fired under the
following circumstances, to wit: That
on the said tenth day of May, 1897, at
said corner of 2jrd street and Sixth
avenue in the city of New York, the
said Richard Roe, being then and there
a police officer of the city of New York,
saw the sa\AJohn Doe running along
a$rd street in the city of New York with
a parcel under his arm; that the said
Richard Roe called to the said John Doe
and shouted to him to stop, and that as
the saidy?/* Doe did not stop running
and paid no heed to the shouts and
cries of said officer to stop, the said
Richard Roe aimed his revolver and
fired at the saidJoAn Doe, who was
then about thirty feet away from the
said Richard Roe, and that thereupon
the said John Doe fell mortally wounded
from the effect of the bullet so fired by
the said Richard Roe then and there,
and that the said Jo An Doe thereafter
languished from the effect of the said
bullet wound so inflicted and died at
Bellevue Hospital in the city of New
York after the expiration of four hours.
And the jury further say upon their
oaths and affirmations that the said
Richard Roe in firing the said bullet
and mortally wounding and causing
the death of the said John Doe far ex-
ceeded his duty and that the death of
the saidy^w Doe was and is murder
by the said Richard Roe."
Drowning. " Came to his death from
drowning in the East river in the state
of New York, and that the body of the
saidJoAn Doe was found floating in the
said East river on the tenth day of
May, 1897.
And the jury further say upon their
oaths and affirmations that the saidJoAn
Doe was a well known, respectable and
wealthy citizen of the city of New
York, and that when last seen on the
ninth day of May, 1897, the said John
Doe had with him a large sum of money,
a gold watch and other articles of
value, and that when the body of the
saidJoAn Doe was found as aforesaid,
in the said East river on the tenth day
of May, 1897, there was no money, or
watch, or any article in the clothes or
upon the person of the said John Doe.
517
Volume 5.
6384.
CORONERS INQUESTS.
6384.
Dated at New York this eleventh day of May, iS97.
{Signatures of all the jurors.}
John Smith, Coroner. 1
Form No. 6384.
(Sand. & H. Dig. Ark. (1894), 760.)
State of Arkansas, \
County of Clark. [
An inquisition, taken on \ht tenth day of May, iS97, at Arkadelphia,
And the jury further say upon their
oaths and affirmations that the removal
of the said money, watch and other
valuables from the clothes and person
of the said John Doe is an indication
that the said John Doe came to his
death and came to be so floating in the
said East river by foul play at the hands
of some person or persons unknown."
Justifiable Homicide. "Came to his
death from a blow on the head inflicted
by a certain Richard Roe on the tenth
day of May, 1897, at 213 Sixth avenue
in the city of New York.
And the jury further say upon their
oaths and affirmations that the said
Richard Roe is and was a policeman of
the said city of New York, and that the
said Richard Roe having arrested the
said John Doe at the said No. 213 Sixth
avenue in the city of New York on the
tenth day of May, 1897, for felony com-
mitted by burglariously breaking into
the premises of a certain William
Smith at the said No. 213 Sixth avenue
in the city of New York, the saidy^
Doe then and there violently broke
away from the said Richard Roe and
then and there violently attacked the
said Richard Roe and that said Richard
Roe, in self-defense and justifiably in
the execution of his duty as a police
officer of the city of New York, did
then and there at No. 213 Sixth avenue
in the city of New York on the tenth day
of May, 1897, strike such blow with his
club on the head of the said John Doe and
that said blow inflicted a mortal wound,
from which said John Doe languished
and died after the expiration of two days
at Bellevue Hospital in the city of New
York.
And the jury further say upon their
oaths and affirmations that the said
Richard Roe was and is in no way to
blame for said death and should be
and is exonerated from all guilt in
connection with such death."
Knife Wound. " Came to his death
from a knife wound in the left side,
which wound was inflicted by a certain
Richard Roe of the county of New York
on the tenth day of May, 1897, at No.
213 Sixth avenue, by means of a cer-
tain knife then and there held in the
hands of the said Richard Roe, and that
the said knife wound then and there
inflicted on the left side of
Doe was a mortal wound.
And the jury further say upon their
oaths and affirmations that the said
knife wound was so inflicted on the said
John Doe by said Richard Roe while the
said John Doe was endeavoring to ap-
prehend the said Richard Roe, who was
then committing a burglary on the
premises of the saidy^w Doe at No. 2/3
Sixth avenue, New York city."
Poison. "Came to his death from
swallowing a certain poison known as
arsenic, which was administered and
given to the said John Doe on the tenth
day of May, 1897, at No. 213 Sixth ave-
nue in the city of New York by a cer-
tain Richard Roe, of the said city and
county of New York.
And the jury further say on their
oaths and affirmations that the said
Richard Roe gave the said arsenic to the
said John Doe in a cup of coffee on the
said tenth day of May, 1897, with the
premeditated design and intention to
then arid there cause the death of the
sa\d John Doe by means of the said
arsenic, and that the said. Richard Roe
wilfully and deliberately mixed the said
arsenic in the said cup of coffee, well
knowing that the said arsenic was
deadly poison and would cause the
death of the said John Doe.
And the jury further say upon their
oaths and affirmations that the killing
of the saidy^/wz Doe by said Richard
Roe on the said tenth day of May, 1897, at
the said No. 213 Sixth avenue by means
of said arsenic was wilful murder."
1. Where the inquest was signed by
the coroner and duly certified to by him
and the jurors signed by making their
marks and the whole was certified to by
the coroner, who was a sworn officer,
his certificate of the signatures of the
jurors was sufficient. State v. Evans,
27 La. Ann. 297.
518
Volume 5.
6385. CORONERS INQUESTS. 6386.
in said county of Clark, before John Smith, coroner of said county,
upon the view of the dead body of {Here insert the name of the deceased,
if knoivn, or, if unknown, a description of the person, by his apparent age,
size, clothes, etc.), by the oaths of {Here insert the jurors' names), good
and lawful jurors of said county, who, being in due form sworn, say
that the said {describing deceased as above) came to his death {Here in-
sert the time, cause, manner and circumstances of the death as found).
In testimony whereof, as well the said coroner as the said jurors,
have hereunto set their hands, the day and year first aforesaid.
{Signatures of coroner and Jurors.)
Form No. 6385.
(Precedent in U. S. L. Ins. Co. z>. Vocke, 129 111. 561.)
State of Illinois, \
County of Cook, f
An inquisition was taken for the People of the State of Illinois, at
38 Grant place, in the city of Chicago, in said county of Cook, on the
18th day of January, A. D. iS85, before me, Henry L. Hertz, coroner
in and for said county, upon view of the body of Otto W. Kielgast,
then and there lying dead, upon the oaths of six good and lawful men
of the said county, who, being duly sworn to inquire, on the part of
the People of the State of Illinois, into all the circumstances attend-
ing the death of the said Otto W. Kielgast, and by whom the same
was produced, and in what manner and when and where the said Otto
W. Kielgast came to his death, do say, upon their oaths as aforesaid,
that the said Otto W. Kielgast, now lying dead at 38 Grant place, in
said city of Chicago, county of Cook, State of Illinois, came to his
death on the 17th day of January, A. D. iS85- and we, the jury, find
that O. W. Kielgast came to his death on the night of January 17,
iS85, by a pistol-shot fired by his own hand, while laboring under a
fit of temporary insanity.
In testimony whereof, said coroner and the jury of this inquest
have hereunto set their hands the day and year aforesaid.
Douglas Barstou', Foreman. Louis Gasselin,
O. W. Haynie, H. M. Gillette,
Angelo Faiel, M. /. Shute.
Henry L. Hertz, Coroner.
P. Knoff, Deputy.
VI. WARRANT OF ARREST. 1
1. Requisites of Warrant. For statutes Delaware. Laws (1893), p. 263.
relating to the coroner's warrant of ar- Idaho. Rev. Stat. (1887), 8384,
rest see as follows: 8385.
Alabama. Crim. Code (1886), 4809. Iowa. Code (1897), 524.
Arizona. Pen. Code (1887), 2316, Kansas. Gen. Stat. (1889), 1787-
2317. I79-
Arkansas. Sand. & H. Dig. (1894), Kentucky. Stat. (1894), 529.
764. 765. Maine. Rev. Stat. (1883), c. 139, 10.
California. Pen. Code (1897), Michigan. How. Anno. Stat. (1882),
1517,1518. 9592,9595.
Colorado. Mills' Anno. Stat. (1891), Mississippi. Anno. Code (1892),
877-880. 822.
519 Volume 5.
6386.
CORONER'S INQUESTS.
6386.
Form No. 6386.
(Precedent in State v. Bailey, 32 Kan. 8s.) 1
State of Kansas, )
Reno County. f
The State of Kansas toy. M. Hedrick, Sheriff of Reno County:
Whereas, on the 21st day of May, i8c?#, notice was given me, the
undersigned, A. W. McKinney, a coroner in and for said county, that
the dead body of a man had been found at the N. W. 1-4, sec. 9,
town 24 , range 5 west, in said county, supposed to have died by
unlawful means; thereupon I issued a summons for six citizens of
said county, and directed the same to J. M. Hedrick, sheriff of said
county, returnable forthwith. Summons returned at 10 o'clock.
The following jurors appeared: A. M. Switzer, J. Q. Robertson, J.
C. Moore, J. Peter Klein, George L. Wainner, Edward Dennis, who
were duly sworn. The jurors having inspected the body, heard the
testimony, and made all needful inquiries, returned to me their
inquisition in writing under their hands, as follows:
"State of Kansas, Reno County. An inquisition, holden at the
residence of J.P. Bailey, on section 9, town 24, range 5, in said
county, on the 21st day of May, i8#, before me, A. W. McKinney,
coroner of said county, on the body of J. P. Bailey, there lying dead,
Montana. Pen. Code (1895), 2797,
2801.
Nebraska. Comp. Stat. (1897),
2207.
New Jersey. Gen. Stat. (1895), p.
899, 14-
Nevada. Gen. Stat. (1885), 2263,
2264.
North Dakota. Rev. Codes (1895),
2016, 2018.
South Carolina. Crim. Stat. (1893),
598.
Tennessee. Code (1896), 7289,
7290.
Utah. Rev. Stat. (1898), 1234.
Virginia, Code (1887), 3945.
West Virginia. Code (1891), p. 950,
7-
Wisconsin. Sanb. & B. Anno. Stat.
(1889), 4876.
Wyoming. Rev. Stat. (1887), 1884.
1. It was held in this case that the
facts are not set forth in exhaustive
detail nor as fully as they should be,
nor with perfect accuracy, yet the pro-
ceedings thereafter are not so irregular
for these reasons as to be utterly void.
State v. Bailey, 32 Kan. 83.
In State v. Tennison, 39 Kan. 726,
the defendant was arrested upon the
following warrant:
" State of JFansas, )
Johnson County, j
To the Sheriff of Johnson County,
Kansas :
Whereas, a coroner's jury duly sum-
moned and sworn to determine the
cause of the death ofy. D. Tennison,
held onjuneajth, i8c?7, and July nth,
i8<?7, returned a verdict thereon on July
nth, i8<?7, that the said J. D. Tennison
came to his death by means of poison-
ing, being arsenic feloniously adminis-
tered, as they the jurors believe, by Mrs.
J. D. Tennison and others to said jurors
unknown; this, therefore, is to com-
mand you forthwith to arrest said Mrs.
J. D. Tennison and take her to some
justice of the peace of said county then
and there to answer to the charge of
feloniously administering the said
poison and causing the death of the
said J. D. Tennison. In witness
whereof, I have hereunto set my hand
this July nth, 18^7.
Dr. Thomas ffamill, Coroner."
The defendant submitted to a prelimi-
nary examination on this warrant and
did not question the sufficiency of the
charge therein contained, but after the
information was filed sought to have
the prosecution abated because the
warrant was void. The court ruled that
although the charge as stated in the
warrant is not as full and precise as it
should have been, it was too late to
challenge its sufficiency after the pre-
liminary examination was concluded
and the defendant bound over for trial.
530
Volume 5.
6387. CORONER'S INQUESTS. 6388.
by the jurors whose names are hereunto subscribed. The said
jurors, upon their oaths, do say he came to his death by being hit
upon the head with a piece of iron water-pipe in the hands of /. /.
Bailey.
Given under our hands, this day of inquisition.
A. M. Switzer. J. C. Moore.
J. Q. Robertson. Geo^. I. Wainner.
J. Peter Klein. Edward Dennis. "
You are therefore required to arrest the said J. I. Bailey, and bring
him forthwith before George D. Barclay, at his office in Hutchinson,
in said county, to answer said charge, and then and there return this
writ.
Witness my hand, in Reno county, this 21st day of May, iS83.
A. W. McKinney.
Coroner of Reno County.
Form No. 6387.
(Cook's N. Y. Code Crim. Proc. (1891), p. 484, No. 280.)'
State of New York, \
County of New York. \ ss *
In the name of the People of the State of New York:
To any sheriff, constable, marshal or policeman in this county:
An inquisition having been this day found by a coroner's jury be-
fore me, stating that John Doe has come to his death by the act of
Charles Davis, by criminal means as found by the inquisition.
You are therefore commanded forthwith to arrest the above named
Charles Davis and bring him before me, or in the case of my absence
or inability to act, before the nearest or most accessible coroner in
this county.
Dated at the City of New York this eleventh day of May, iS97.
John Smith,
Coroner of the County of New York.
VII. WARRANT OF COMMITMENT. 2
Form No. 6 3 8 8 .
(Del. Laws (1893), p. 263.)*
Kent County, ss.
The state of Delaware to the sheriff of said county:
It having been found by an inquisition taken the eleventh day of
May, A. D. i&97, before John Smith, coroner of the county aforesaid,
1. New York. Code Crim. Proc., niinois.-Sla.tr & C. Anno. Stat.
780, 781. (1896), p. 984, par. 26.
2. For forms of commitment, generally, South Carolina. Crim. Stat. (1893),
consult the title COMMITMENT AND Dis- 599.
CHARGE, vol. 4, p. 926. See also the 3. See also a form in Matter of Col-
following statutes: lins, n Abb. Pr. (N. Y. Oyer & T. Ct.)
Arkansas. Sand. & H. Dig. (1894), 408.
768.
521 Volume 5.
6388. CORONERS INQUESTS. 6388.
upon view of the dead body of John Doe, that the said John Doe came
to his death {set forth as found by the inquisition): We do therefore,
herewith, send to you the said Charles Jones and command you to
receive and safely keep him for trial, or until he shall be lawfully
discharged..
Witness the hand and seal of the said coroner, the llth day of
May, 1 897.
(SEAI) John Smith, Coroner.
523 Volume 5.
CORPORATIONS.
BY C. A. MOLLOY.
I. IN GENERAL, 527.
i. Incorporation, 528.
a. Application, 528.
b. Granting Application, 531.
a. Amending Certificate of Incorporation, 533.
a. Notice to Attorney-General, 534.
b. Petition, 535.
c. Decree, 536.
(1) Interlocutory, 536.
(2) Final, 537.
II. CONSOLIDATED CORPORATIONS, 538.
1. Proceedings by or on Behalf of, 538.
a. To Enforce Consolidation Agreement, 539.
(1) Bill in Equity, 539.
(2) Answer, 543.
b. To Foreclose Mortgage, 549.
c. To Recover Subscription to Constituent Corporation, 563.
2. Proceedings against, 566.
a. For Injunction, 567.
(1) To Enjoin Operation of Proposed Lease, 567.
(2) To Restrain Operation of Agreement Creating
Monopoly, 568.
(a) Attorney-General 1 s Information, 568.
(&) Order to Show Cause why Injunction should
not Issue, 604.
(V) Order for Injunction, 606.
,y) Injunction, 607.
(3) To Restrain Operation of Consolidated Competing
Railroad, 609.
b. For Mandamus, 615.
(1) To Compel Reconstruction of Highway, 615.
(2) To Compel Running of Passenger Trains, 616.
c. For Mandatory Injunction to Enforce Decree, 619.
d. By Judgment Creditor of Constituent Corporation, 620.
(1) To Set Aside Transfer of Property, 620.
(2) To Subject Property to Lien and Judgment against
Constituent Corporation, 625.
e. By Trustee of Stock Asking Instructions, 626.
f. Upon Causes of Action Existing against Constituent Cor-
poration, 628.
(1) On Bonds, 628.
(2) On Judgment, 633.
(3) On Mortgage, 634.
523 Volume 5.
III. REORGANIZED CORPORATIONS, 637.
i. Proceedings by or on Behalf of , 637.
a. For Mandamus, 637.
b. Answer of Secretary of State to Order to Show Cause, 641.
9. Proceedings against, 644.
a. To Recover Bonds and Prevent Issue of Other Bonds, 644.
b. Answer Alleging Nonliability, 648.
c. Answer of Reorganization Committee to an Attack upon
their Powers, 650.
IV. DISSOLUTION WINDING UP, 658.
i. Proceedings to Dissolve, Generally, 658.
a. Before Attorney- General, 659.
(1) Notice of Motion, 659.
(2) Submission of Statement of Facts, 659.
(a) By Written Request, 659.
(b) By Petition, 660.
b. Obtaining Leave to Sue, 662.
(1) Petition, 662.
(a) By Attorney- General, 662.
() By Stockholder, 662.
(2) Order Granting Leave, 663.
(a) To Attorney- General, 663.
(b) To Stockholder, 664.
c. Bill for Dissolution, 665.
d. Complaint, Petition, Suggestion or Information, 667.
(1) For Abuse, Misuse or Nonuse of Franchise, 667.
(a) In General, 667.
(b) Illegal Business Lottery, 669.
(/) Illegal Combination Monopoly, 673.
aa. Gas Trust, 673.
bb. Oil Trust, 676.
cc. Sugar Trust, 683.
(</) Improper Consolidation, Unlawful Lease and
Nonuser, 684.
(i) Improper Use of Funds by Building and Loan
Association, 688.
(_/) Insolvency, 689.
aa. At Instance of Attorney -General, 689.
bb. At Instance of Stockholder, 691.
{g) Neglect and Mismanagement, 694.
(^) Nonpayment of Stock, 697.
(/) Other Violations of Law, 698.
aa. Relating to Banks, 698.
W. Relating to Insurance Companies, 700.
*r. Relating to Railroads, 701.
(2) For Usurpation of Franchises, 703.
(3) Cross-petition of Creditor of Insolvent Corpora-
tion, 711.
e. Answer or Plea, 717.
(1) Denying Abuse or Misuse of Franchise, 717.
(2) Denying Usurpation of Franchise, 719.
524 Volume 5.
CORPORA TIONS.
(3) Setting Up Valid Consolidation Agreement, 723.
f. Demurrer, 725.
(1) To Bill in Equity, 725.
(a) Charging Unlawful Preferences, 725.
(b) Seeking to Forfeit Franchise of Plank Road
Company, 726.
(2) To Petition, 727.
(3) To Plea, 728.
g. Replication, 728.
h. Judgment or Decree, 730.
. Proceedings for Voluntary Dissolution, 735.
a. Petition, 736.
. Order to Show Cause, 739.
. Order Fixing Time and Place of Hearing Petition, 740.
d. Clerk's Notice of Time and Place of Hearing Petition, 741.
e. Objections by Creditor, 741.
f. Petition of Minority Stockholders and Creditors to Dismiss
Application, 742.
g. Decree, 744.
3. Proceedings After Dissolution, 745.
a. By or on Behalf of Corporation, 745.
(1) By Receiver, 745.
(2) For Mandamus, 748.
(3) To Revive Suit against Debtor, 748.
(4) For Writ of Prohibition, 749.
(5) Answer Alleging Dissolution, 752.
b. Against Corporation, 753.
(1) Complaint, 753.
(2) Petition of Creditors, 754.
(a) To Declare Trust on Corporate Property, 754.
() TV ^aw Sole Remaining Officer Act as Trustee
for Creditors, 756.
CROSS-REFERENCES.
For Form of Plea in Abatement in Actions by or against Corporations, see
the title ABATEMENT, PLEAS IN, vol. i, Forms Nos. 60,
<*', 76, 77, 7#, 9 6 -
For Form of Bill in Equity against Promoters, see the title A CCO UNTS
AND ACCOUNTING, vol. i, Form No. 491.
For Form of Bill in Equity against Organizers of a Corporation and
Vendors of Property thereto, see the title ACCOUNTS AND
ACCOUNTING, vol. i, Form No. 489.
For Form of Affidavit by Officer of Corporation, see the title AFFI-
DA VITS, vol. i, Form No. 958 et seq.
For Form of Answer Denying Corporate Existence, see the title
ANSWERS IN CODE PLEADING, vol. i, Form No. 1495.
For Form of Answer Setting Up Failure to Comply with Statutory Regu-
lations, see the title ANSWERS IN CODE PLEADING,
vol. i, Form No. 1396.
For Form of Verification by Officer of Corporation, see the title
ANSWERS IN CODE PLEADING, vol. i, Form No. 1439.
525 Volume 5.
CORPORA TIONS.
For Form of Petition by or against Corporation upon a Promissory Note,
see the title BILLS AND NOTES, vol. 3, Forms Nos. 4140,
4149.
For Form of Plea that Defendant Signed Draft as Officer of Corpora-
tion, see the title BILLS AND NOTES, vol. 3, Form No. 4252.
For Formal Parts of Pleadings in Actions by and against Corporations,
see the titles ANSWERS IN CODE PLEADING ; AN-
SWERS IN EQUITY ; BILLS IN EQUITY; COM-
PLAINTS j DECLARATIONS; PLEAS; etc., and the
GENERAL INDEX to this work.
For Forms in Actions upon Bonds and Undertakings of Corporations or
Affecting the Rights of Corporations, see the title BONDS AND
UNDERTAKINGS (ACTIONS ON), vol. 3, Forms Nos.
4395, 4453 ^ seq.
For Forms in Actions by and against or relating to a Particular Kind of
Corporations, see the titles CARRIERS, vol. 4, p. 192; ELE-
VATED RAILROADS; NATIONAL BANKS; RE-
LIGIOUS SOCIETIES; etc., and the GENERAL INDEX
to this work.
For Forms in Actions by and against Officers of Corporations, see the
title DIRECTORS, ETC.
For Forms of Indictments for Conspiring to Hinder Business of a Cor-
poration, see the title CONSPIRACY, Forms Nbs. 6154, 6155.
For Forms in Actions against Corporations for False Imprisonment, see
the title FALSE IMPRISONMENT.
For Forms in Proceedings to Foreclose Mortgages, see the title FORE-
CLOSURE, ETC.
For Forms in Actions by or against or relating to Foreign Corporations,
see the title FOREIGN CORPORA TIONS.
For Forms in Actions against Corporations for Libel, see the title
LIBEL.
For Forms relating to Public Corporations, generally, see the title
MUNICIPAL CORPORA TIONS.
For Forms in Proceedings for Change of Name vf Corporations, see the
title NAMES.
For Forms of Service of Process on Corporations, see the title SER-
VICE OF WRITS AND PAPERS.
For Forms in Proceedings to Sequester Corporate Property, see the title
SEQUESTRATION.
For Forms in Actions by and against Shareholders and Stockholders or
concerning Shares of Stock, see the title STOCK AND STOCK-
HOLDERS.
For other Forms in Actions and Proceedings affecting Corporations or
the Property of Corporations, see the titles CERTIFIED
CASES; CERTIORARI; COMMERCIAL AGENCIES;
CREDITORS' SUITS; DEATH BY WRONGFUL
ACT; DEPOSITS; DIVIDENDS; EMINENT DO-
MAIN; INJUNCTIONS; INSOLVENCY; INSUR-
ANCE; MANDAMUS; NUISANCES; PERSONAL
INJURIES; QUO WARRANTO; RAILROADS; RE-
CEIVERS; and the GENERAL INDEX to this work.
526 Volume 5.
6389.
CORPORATIONS.
6389.
For matters of Procedure, see ENCYCLOPEDIA OF PLEADING AND
PRACTICE, titles CORPORATIONS; WINDING UP.
Formatters of Substantive Law, see AMERICAN AND ENGLISH ENCYCLO-
PEDIA OF LAW, titles. CONSOLIDATION OF CORPORA-
TIONS; CORPORATIONS (PRIVATE}; DISSOLU-
TION OF CORPORATIONS; REORGANIZA TION OF
CORPORA TIONS.
I. IN GENERAL. 1
1. Actions by and against Corporations.
Every corporation, both foreign and
domestic, may sue and be sued, both at
law and in equity, whenever the cor-
porate property or rights are involved,
exactly as an individual might under
similar circumstances. 5 Encycl. of
PI. and Pr. 54. Hence the forms in
actions by and against corporations gen-
erally will be found under their proper
tiltes in this work. There are certain
actions, however, affecting peculiarly
corporations and corporate interests.
These latter only are treated in this title.
Statutes exist in every state providing
for the formation, control and existence
of corporations, denning their powers
and prescribing their restrictions. The
following is a list of the statutory
provisions relating to corporations
generally:
Alabama. Civ. Code (1886), 1521
et seq. ; Acts (1890-1891), Nos. 325, 403,
430.
Arizona. Rev. Stat. (1887), 329
et seq.
Arkansas. Sand. & H. Dig. (1894),
c. 47.
California. Civ. Code (1897), 283
et seq.
Colorado. Mills' Anno. Stat. (1891),
c. 30; Laws (1891), p. 95.
Connecticut. Gen. Stat. (1888), 1905
et seq.; Laws (1889), p. 138; Laws (1893),
pp. 224, 263; Laws (1895), pp. 467, 571.
Delaware. Rev. Stat. (1893), c. 70;
17 Laws, c. 147.
District of Columbia. Comp. Stat.
(1894); c. 15.
Florida. Rev. Stat. (1892), 2119
et seq.
Georgia. 2 Code (1896), 1835 etseq.,
1879 et seq., 1903, 1986, 2OOO, 2008, 2147,
2159, 2167, 2180, 2339, 2349 et seq.
Idaho. Rev. Stat. (1887), 2575
et seq.
Illinois. Starr & C. Anno. Stat.
(1896), p. 985 et seq., p. ion, par. 25,
p. 1028, par. 50 et seq., p. 1036, par. 80
et seq. ; Laws (1897), p. 281.
.Indiana. Horner's Stat. (1896),
3001 et seq., 1141, 5556, 3951, yo/b$ etseq.
Iowa. Code (1897), 1607 et seq.
Kansas. Gen. Stat. (1897), c. 66.
Kentucky. Stat. (1894), c. 32; Acts
(1896), c. 31; Acts (1897), c. 14.
Louisiana. Rev. Laws (1897), p. 134
et seq.
Maine. Rev. Stat. (1883), c. 46;
Laws (1891), c. 99, 140; Laws (1893), c.
212; Laws (1897) c. 192/225.
Maryland. Pub. Gen. Laws (1888),
p. 280 et seq.
Massachusetts. Pub. Stat. (1882), c.
105, 106.
Michigan. How. Anno. Stat. (1882),
3343 t Se 1-i 4 2 47 ft seq., 4860 et seq. ;
Pub. Acts (1891), pp. 16, 143, 277; Pub.
Acts (1895), p. 326.
Minnesota. Stat. (1894), c. 34, 2714
et seq.
Mississippi. Anno. Code (1892), c.
25-
Missouri. Rev. Stat. (1889), c. 42.
Montana. Civ. Code, 390 et seq.,
Code Civ. Proc., ziqoet seq.
Nebraska. Comp. Stat. (1897), c. 16.
Nevada. Gen. Stat. (1885), c. 8.
New Hampshire. Pub. Stat. (1891),
C. 147 et seq.
New Jersey. Gen. Stat. (1896), p. 904
et seq.
New Mexico. Comp. Laws (1884),
192 et seq.; Laws (1897), c. I, 19, 29.
New York. Birds. Rev. Stat. (1896),
p. 647 etseq.
North Carolina. Code (1883), c. 16;
Laws (1885), c. 19, 190; Laws (1889), c.
170; Laws (1891), c. 257; Laws (1893),
c. 244.
North Dakota. Rev. Codes (1895),
2850, 3265, 5775 et seq.; Laws (1897),
p. 63.
Ohio. Bates' Anno. Stat. (1897),
3232 et seq.
Oklahoma. Stat. (1893), c. 17.
Oregon. Hill's Anno. Laws (1892),
IS* ft seq., 3217, 3271.
Pennsylvania. Bright. Pur. Dig.
(1894), p. 403 et seq.
527
Volume 5.
6389.
CORPORA TIONS.
6389.
1. Incorporation. 1
a. Application.
Form No. 6389.
To the Honorable John Marshal, Associate Judge of the Superior
(or Circuit) Court of the County of Kent (or Albemarle), State of
Delaware (or Virginia): 2
Under and pursuant to the requirements of {Here properly indicate
and refer to the laws under which it is sought to incorporate), we, the
undersigned (names of the proposed ^corporators')? desiring for our-
selves, our associates and successors, to form and be incorporated
as a corporation (or joint stock company), do hereby make, sign and
acknowledge this certificate in writing, certifying as follows:
Rhode Island, Gen. Laws (1896), c.
1 76 et seq.
South Carolina. Rev. Stat. (1893),
1499 et seq.
South Dakota. Dak. Comp. Laws
(1887), 2889 et'seq.
Tennessee. Code (1896), g 2024 et seq.
Texas. Rev. Stat. (1895), art. 638 et
seq.
Utah. Rev. Stat. (1898), 314 et
seq., 3623, 3661 et seq.
Vermont. Stat. (1894), c. 164 et seq.
Virginia. Code (1887), c. 46, 47.
Washington. Ballinger's Codes &
Stat. (1897), 4250 et seq.
West Virginia. Code (1891), c. 52 et
seq.
Wisconsin. Sanb. & B. Anno. Stat.
(1889), 1764, 1777, 1788, 1833.
Wyoming. Rev. Stat. (1887), 501
et seq., 3093 et seq. ; Const. (1890), art. 10;
Laws (1890), p. 21 et seq.; Laws (1895),
p. 223.
See also lists of statutes cited infra,
note i, p. 538, note 2, p 658, note I,
P- 735-
1. The instrument by which a private
corporation is formed is variously desig-
nated. It is called "agreement" in
Utah and West Virginia; "articles of
incorporation" in Arizona, Arkansas,
California, Connecticut, Dakota, Florida,
Idaho, Iowa, Kentucky, Michigan, Min-
nesota, Missouri, Nebraska, North Caro-
lina, Ohio, Oklahoma, Oregon, Vermont,
Washington, Wisconsin; "articles of
association " in Indiana and New Hamp-
shire; " certificate of incorporation" in
Colorado, Delaware, District of Columbia,
Maine, Maryland, Montana, Nevada,
New Jersey, New York, Virginia, Wy-
oming; "charter" in Louisiana, Massa-
chusetts, Mississippi, Pennsylvania, Ten-
nessee, Texas; "declaration" in Alabama,
Georgia, South Carolina, and " license "
in Illinois. See list of statutes cited
supra, note I, p. 527.
Application to courts is the proper
method of incorporation in only a few
of the states.
Alabama. Civ. Code (1886), 1660.
Delaware. 17 Laws, c. 147 (Rev.
Stat. (1893), p. 574 etseq.).
Georgia. 2 Code (1895), 2349, 2350.
North Carolina. Cote (1883),
677.
Virginia. Code (1887), 1145.
And even in these states the proceed-
ing is only quasi judicial in its nature,
the court acting in a legislative rather
than in a judicial capacity. Gas-Light
Co. v. West, 78 Ga. 318. The forms of
this method of incorporation are given
in this article.
In the other states, however, the
forms of incorporation are in no way
connected with court proceedings, and
are omitted as not properly being plead-
ing or practice forms.
2. Must be presented, in Alabama, to
the judge of probate. Ala. Civ. Code
(1886), 1660. In Delaware, to the as-
sociate judge of the county. 17 Del.
Laws, c. 147 (Rev. Stat. (1893), p. 574).
In Georgia, to the superior court. 2
Code (1895), 2350. In North Carolina,
to the clerk of the superior court. N.
Car. Code (1883), 677. In Virginia,
to the circuit or corporation court. Va.
Code (1887), 1145.
3. Must be presented by not less than
three persons in Alabama, Delaware and
North Carolina. Ala. Laws (1887), p.
103; 17 Del. Laws, c. 147 (Rev. Stat.
(1893), p. 574); N. Car. Code (1883),
677. In Georgia the petition may be
made by any number of persons. 2
Code (1895), 2350. In Virginia the
petition may be made by not less tha-n
five persons. Va. Code (1887), H45-
528
Volume 5.
6389.
CORPORA TIONS.
6389.
I. The corporate name of said corporation (or company) shall be
The Dover Brick Company*
II. The purposes and object for which this corporation (or company)
is organized are (Here set out. the object and purposes of the corporation},
and generally to do all things necessary or proper for carrying on
said business, and for those purposes to have, possess and enjoy all
the rights, benefits, privileges and immunities incident to, and given
under the laws of this state to, a corporation (or company) of such
character. 2
III. The amount of the capital stock shall be (or shall not be less
than) one hundred thousand dollars, to be divided into shares of the
par value of one thousand dollars each, and the amount to be paid in
to commence business shall be twelve thousand dollars, being more
than ten per centum of the said capital stock. 3
[IV. The period at which said corporation shall commence and
terminate shall be as follows: It shall commence on the first day of
March, eighteen hundred and ninety-eight, and shall terminate on the
first day of March, nineteen hundred and eighteen^
V. The value or amount of real estate of which said corporation
may become seised and possessed shall not exceed in value (or in
amount) the sum of two hundred and fifty thousand dollars (or fifty acres
of land), [and the value of the personal estate of which said corpo-
ration may become seised and possessed may be the sum of one hun-
dred thousand dollars. ] 5
1. Corporate name must be stated.
Alabama. Civ. Code (1886), 1660.
Delaware. 17 Laws, c. 147 (Rev.
Stat. (1893), p. 574)-
Georgia. 2 Code (1895), 2350.
North Carolina. Cote (1883),
677-
Virginia. Code (1887), 1145.
2. Object of incorporation must be
stated.
Alabama. Civ. Code (1886), 1660.
Delaware. 17 Laws, c. 147 (Rev.
Stat, (1893), P- 574)-
Georgia. 2 Code (1895), 2350; In
re Deveaux, 54 Ga. 673.
North Carolina. Code (1883), 677.
Virginia. Code (1887), 1145.
Where petition does not designate the
purposes of the corporation, but the
name of the same indicates its business
and the object thereof appears, the char-
ter is not invalid. Van Pelt v. Home
Bldg., etc., Assoc., 79 Ga. 439. Also,
a statement of the objects of the corpo-
ration in the judge's order cures the
defect of failing to state them in the
petition. Redwine v. Gate City Loan,
etc., Assoc., 54 Ga. 474.
3. Amount of capital stock, number
and par value of shares, and the
amount to be paid before commencing
business, which shall not be less than
a certain per centum of the whole capi-
tal stock, must be stated.
Delaware. 17 Laws, c. 147 (Rev. Stat.
(1893), p. 574). Similar statutes exist
in:
Alabama. Civ. Code (1886), 1660.
Georgia. 2 Code (1895), 2350.
North Carolina. Code (1883), 677.
Virginia. Cote (1887), 1145.
Amount with which to commence busi-
ness must be stated.
Delaware. 17 Laws, c. 147 (Rev.
Stat. (1893), p. 574).
Georgia. 2 Code (1895), 2350.
Amount actually paid in must be
stated.
Georgia. 2 Code (1895), 2350.
4. Time of commencement and termina-
tion must be stated.
Delaware. 17 Laws, c. 147 (Rev. Stat.
(1893), p. 574).
Georgia. 2 Code (1895), 2350.
North Carolina. Code (1883), 677.
5. Value of real property which the
corporation may own must be stated.
Delaware. 17 Laws, c. 147 (Rev.
Stat. (1893), p. 574).
Virginia. Code (1887), g 1145.
Value of personal property which indi-
viduals may own must be stated.
Delaware. 17 Laws, c. 147 (Rev.
Stat. (1893), p. 574).
5 E. off. P. 34-
529
Volume 5.
6390.
CORPORA TIONS.
6390.
VI. The location of the principal place of business or the chief
office of said corporation (or company) will be at the city of Dover (or
Charlottesville), in the courity of Kent (or Albcmarle), in the state of
Delaware (or Virginia).' 1
VII. The names and residences of the original subscribers to the
capital stock are as follows : (Here list names and residences of sub-
scribers, and amounts subscribed by them respectively. ) 2
[VIII. The day on which the annual election referred to in section
23 of the act hereinbefore mentioned shall be the first Tuesday in
March in each and every year.]
In witness whereof we, the undersigned, the original subscribers
to the capital stock of the corporation, have hereunto set our hands
and seals thisjirst day of February, iS98.
(Signatures, seals, witnesses and acknowledgments, as in the case of
ordinary conveyances.^
Form No. 6390.*
1. Principal place of business must be
stated.
Alabama. Civ. Code (1886), 1660.
Delaware. 17 Laws, c. 147 (Rev.
Stat. (1893), p. 574).
Georgia. 2 Code (1895), 2350.
North Carolina. Code (1883),
677-
Virginia. Code (1887), 1145.
Chief business to be transacted must
be stated.
Virginia. Code (1887), g 1145.
2. Names and residences of original sub-
scribers and original incorporators must
be stated.
Alabama. Civ. Code (1886), 1660.
Delaware. 17 Laws, c. 147 (Rev.
Stat. (1893), p. 574).
North Carolina. Code (1883), 677.
Names and residences of officers who for
the first year are to manage the affairs
of the company must be stated.,
Virginia. Code (1887), 1145.
Hence, instead of paragraph VII in the
text, insert the following: "VII. The
names and residences of the officers
who shall manage the ajfairs of the
company for the first year are as fol-
lows:" (listing the names and residences of
the president and secretary, directors, etc.)
Other provisions or articles not incon-
sistent with law as may be deemed
proper must be stated.
Alabama. Civ. Code (1886), 1660.
Delaware. 17 Laws. c. 147 (Rev.
Stat. (1893). p. 574 et sey.).
3. Provisions for signing, sealing and
acknowledging the articles or petition
are set out in the statute.
Alabama. Civ. Code (1886), 1660.
Delaware. 17 Laws, c. 147 (Rev
Stat. (1893), p. 574 etseq.\
Georgia. 2 Code (1895), 2350.
North Carolina. Code (1883), 677.
Virginia. Code (1887), 1145.
Publication of the petition, articles or
certificate must be made in the manner
provided by law.
Delaware. 17 Laws, c. 147 (Rev.
Stat. (1893), p. 574 etseq.).
Georgia. 2 Code (1895), 2350 et seq.
North Carolina. Code (1883), 679.
4. Georgia. 2 Code (1895), 2350.
Petition for incorporation of a company
for the purpose of keeping a hose with
which to extinguish fires is set out in
Screven Hose Co. v. Philpot, 53 Ga.
626, and is as follows:
" State of Georgia Chatham County.
To the Honorable the Judge of the
Superior Court of Chatham County:
The petition of Isaac Russell and oth-
ers respectfully showeth that your
petitioners, in connection with other
parties, have entered into an associa-
tion under the name of ' The Screven
Hose Company of Savannah, Georgia,'
and that the object of their association
is to keep on hand a suitable hose car-
riage and hose in the city of Savannah,
county of Chatham, and state of Geor-
gia, and with said hose carriage and
hose, and their personal exertions, to
assist in the extinguishment of fires in
said city of Savannah, and in the pro-
tection of the property of their fellow-
citizens; and that under the provisions
of the charter applied for in this peti-
tion no capital stock is required to be
paid in, the incorporation proposing
530
Volume 5.
6391. CORPORATIONS. 6391.
To the Honorable Superior Court of the County of Pulaski, in the
State of Georgia}-
The petition of (names of incorporators) respectfully shows the fol-
lowing facts:
I. Petitioners, under and pursuant to the requirements of the Civil
Code of Georgia, chapter 2, article 8, section i, desire for themselves,
their associates and successors to be constituted a body corporate.
II. (Like paragraph I in Form No. 6389.)
III. (Like paragraph II in Form No. 6389.)
IV. The capital stock of said corporation shall be one hundred
thousand dollars, to be divided into one hundred shares of one thousand
dollars each, all of which is to be paid in before commencing busi-
ness, and petitioners desire the right to increase said capital stock to
any amount not exceeding two hundred thousand dollars, by a direct
vote of three-fourths of the stock, at a special meeting called for
that purpose. 2
V. (Like paragraph IV in Form No. 6889.)
VI. (Like paragraph VI in Form No. 6389.)
VII. The business of said corporation shall be managed by a
board of directors consisting of five stockholders, who shall be
elected annually at the 'annual meeting of said corporation, to be
held on the first Tuesday in March of each and every year; but the
first board of such directors shall be elected at a meeting to be held
for the organization of said corporation immediately after the grant-
ing of a charter.
VIII. The said board of directors shall elect from its members a
president, a secretary and a treasurer, and may make such rules and
by-laws as may be proper for the government of said corporation
and not in conflict with the laws of the state.
Wherefore, your said petitioners pray the court to grant an order
declaring this application granted, and that they be incorporated as
the corporation aforesaid for a term of twenty years, with the privi-
lege of renewal according to law in such case made and provided.
Oliver Ellsworth, Attorney for the Petitioners.
b. Granting Application.
Form No. 6391.*
Georgia Pulaski County.
In the matter of the application of ) In the Superior Court of
(names of incorporators) for a charter V Pulaski County, Special
for the (name of corporation). ) March term, i898.
not to act upon capital stock, but only 1. Must be presented to the superior
for the purposes first aforesaid. And court. 2 Ga. Code (1895), 2350.
your petitioners pray that they, with 2. Amount of capital to be employed
the other members of their association, and paid in must be specified. In re
may, for the purpose aforesaid, be in- Deveaux, 54 Ga. 673. The amount of
corporated by the name and style of capital actually paid in must be stated
' The Screven Hose Company of Savan- as a condition precedent to the grant-
nak, Georgia,' for the space of twenty ing of the charter. Hendrix v. Acad-
years, with the privileges incident to emy of Music, 73 Ga. 440.
corporations created by courts, as pro- 8. Georgia. 2 Code (1895), $ 2350, pro-
vided by the statutes of the state, and vidingforthe judge's order to be passed
your petitioners will ever pray," etc. declaring the application granted.
631 Volume 5.
6391.
CORPORA TIONS.
6391.
Upon the hearing of the application of (names of the incorporators),
all of the county of Pulaski, state of Georgia, heretofore on the first
day of February, \W8, filed in the office of the clerk of the Superior
Court of said county, asking for a charter for the organization and
incorporation of a certain corporation to be known as The Hawkins-
ville Poultry Association, for the purpose of {Here set out the purpose of
the corporation as stated in the petition} ; and the said (names of incorpo-
rators) having complied with all the requirements of the law relating
to the incorporation of such a corporation, the court is satisfied that
said application is legitimately within the purview and intention of
An order for incorporation is set out in
Screven Hose Co. v. Philpot, 53 Ga.
626, and is as follows:
"Superior Court of Chatham County,
May Term, 187^.
State of Georgia Chatham County:
On reading the foregoing petition,
the court being satisfied that the appli-
cation is legitimately within the pur-
view and intention of the statutes of the
state of Georgia in that behalf made and
provided, and that the terms of the law
have been complied with: It is ordered
that the said application be granted,
and that the petitioners, with the other
members of the association and their
successors, be and they are hereby in-
corporated and made a body corporate
and politic, by the name and style of
' The Screven Hose Company of Savannah,
Georgia? for and during the term of
tit'enty years, with the privilege of re-
newal at the expiration of that time,
according to the provisions of the laws
of Georgia. And it is further ordered
that the said corporation shall have
power to make and pass such constitu-
tion, by-laws, rules and regulations for
the management of the affairs and busi-
ness of the company, which may be
deemed needful, as may be framed and
adopted by the officers and members of
the same, not inconsistent with law.
And further, to exercise all corporate
powers and privileges incident to cor-
porations created by courts, as provided
by law. And it is further ordered that
a certified copy of this petition and
order, under the seal of the court, be
furnished by the clerk of the court to
the petitioners.
Savannah, June 6th, 1874.
William Schley,
Judge Superior Court,
Eastern Circuit."
Alabama. Upon filing the declara-
tion, the judgment of probate must
issue to two or more subscribers a com-
mission authorizing them as commis-
sioners to open books of subscription.
Ala. Civ. Code (1886), 1661. This
commission may be as follows:
}In the office of
John Pomeroy,
Judge of the
Probate Court.
To John Doe and Samuel Short, of the
city of Birmingham, county and state
aforesaid:
Please take notice that in pursuance
of the declaration of incorporation by
you and your associates this day duly
filed in my office in accordance with
the statutes of the state of Alabama in
such case made and provided, I, John
Pomeroy, probate judge of said county
and state, hereby authorize you as
commissioners to open books of sub-
scription to the capital stock of the
(name of corporation) at such time and
place and upon such notice as you may
appoint.
In witness whereof I have hereunto
set my hand and affixed the seal of
said court thisjift/i day of March, 1898.
(SEAL) John Pomeroy,
Probate Judge."
After the opening of books of sub-
scription and other compliance with the
provisions of the law, and upon proper
affidavit filed, the judge of probate
must issue to the subscribers, their as-
sociates and their successors, a certifi-
cate of incorporation. Ala. Civ. Code
(1886), 1663. Such certificate may be
as follows:
"The State of Alabama, \ Inthe/V0-
Jefferson County. f ' bate Court.
To John Doe (naming the other sub-
scriber s\.
Please take notice that whereas, it
appears that you have been in all re-
spects duly organized according to the
laws of the state of Alabama, as appears
from the declaration, report of the com-
missioners appointed to open books of
subscription, the minute entry of the
organization of your corporation, as
532
Volume 5.
6392.
CORPORA TIONS.
6392.
the civil code of the state of Georgia. Whereupon it is ordered, that
said application be and the same is hereby granted, and that the
above named persons (naming them), their associates and successors,
be and they are hereby incorporated for and during the term of
twenty years, under the name and style of The Hawkinsville Poultry
Association, with the privilege of renewal at the expiration of that
time, according to the provisions of the civil code of the state of
Georgia, vested with all the rights, privileges and immunities by law
given to and subject to all the restrictions and liabilities by law
placed upon such a corporation.
C. C. Smith, Judge of the Superior Court
of Pulaski County, Georgia.
2. Amending- Certificate of Incorporation.
well as by the affidavit of the persons
authorized to receive subscriptions, all
of which have been duly filed in my
office, you and your associates and suc-
cessors are hereby duly organized as a
corporation under the name and style
of (name of corporation), and for the
purposes expressed in the declaration,
having the powers, capacity and au-
thority conferred by law upon such a
corporation.
In witness whereof I have hereunto
set my hand and affixed the seal of
said court this twenty-fifth day of March,
(SEAL) John Pomeroy,
Probate Judge."
Delaware. The approval of the
judge must be indorsed upon the ap-
plication and the same transmitted, so
indorsed, to the secretary of the state,
and a copy of the same furnished and
certified by said secretary, under his
hand and seal of office, shall be recorded
in the recorder's office of the county in
which the application is made. 17 Del.
Laws. c. 147 (Rev. Stat. (1893), p. 574).
North Carolina. Formerly the clerk
issued the certificate of incorporation,
Code (1883), 679; but under the Pub-
lic Laws (1893), c. 318, after the articles
of agreement have been recorded the
clerk shall send a copy, certified under
the seal of the court, to the secretary of
state, who shall record the same, and
shall issue letters patent under the
great seal of the state, declaring the
signers of the articles a corporation,
which letters patent shall be recorded
in the clerk's office where the articles of
agreement are recorded.
Virginia. Code (1887), 1 145, pro-
viding that the court or judge in vaca-
tion shall have discretion to grant or
refuse a charter of incorporation upon
the terms set forth in the certificate, or
granted upon such other terms as may
be adjudged reasonable. The order
granting charter may be as follows:
" It appearing from the foregoing
certificate in writing made, signed,
sealed and acknowledged in due course
of law and this day presented to me,
John Marshall, judge of the Circuit
Court of Albemarle county, state of
Virginia, that (names of incorporators)
desire to form a joint stock company
under the provisions of the code of the
state of Virginia, title 18, chapter 47,
for the purposes set forth in said certifi-
cate, which said certificate is hereby
made a part of the record of this order,
a charter of incorporation is by me
hereby granted to the said (names ofin-
corporators), their associates, successors
and assigns, and they are hereby made
and created a body corporate by the
name of The Albemarle Horse Breeders'
Association, with all the powers, privi-
leges and immunities by law con-
ferred upon such a corporation and
subject to all provisions and restric-
tions imposed by law upon such a cor-
poration according to the terms and
conditions and for the purposes set out
in said certificate of writing.
Given under my hand this first day
of March, i8<?S.
John Marshall,
Judge of the Circuit Court
of Albemarle County."
1. Amendment of charter of corporation
may be by a proceeding similar to the
original incorporation proceeding.
Alabama. Acts (1889), p. 17.
Delaware. 17 Laws, c. 147 (Rev.
Stat. (1893), p. 574).
Georgia. 2 Code (1895), 2350.
533
Volume 5.
6392. CORPORATIONS. 6393.
a. Notice to Attorney-General. 1
Form No. 6392.*
In the matter of the application of the Northport Company \
to amend its original certificate of incorporation.
To Daniel Webster, Esq., Attorney-General of the State of New
York:
You will please take notice that upon the petition and upon all
the papers on file in this proceeding, including the original certificate
of incorporation as well as the proposed amended certificate of
incorporation, copies of all of which have herewith been served
upon you, the undersigned, at the special term of the Supreme Court
of New York, to be held at Riverhead, in the county of Suffolk, state
of New York, on the twenty-fifth day of March, \W8, at ten o'clock
in the forenoon of that day, or as soon thereafter as counsel can be
heard, will make application to said court under and by virtue of the
New York Laws of 1890, chapter 563, as amended by New York
Laws of 1892, chapter 687, for an order amending said original cer-
tificate of incorporation of the said Northport Company, which fails
to express the true objects and purpose of the corporation, so as to
truly set forth such object and purpose as set forth in said applica-
tion, and for such other and further relief as to the court may seem
proper and just.
Dated the//M day of March, \W8.
Yours, etc.,
Oliver Ellsworth,
Attorney for the Northport Company.
b. Petition. 3
Form No. 6393.*
Supreme Court, County of Suffolk.
In the matter of the application of the Northport }
Company to amend the original certificate of >
incorporation. )
To the Supreme Court of the State of New York:
Your petitioner, the Northport Company, by its petition here to the
court, says:
North Carolina. Laws (1885), c. 19; terms and conditions as it may impose,
Laws (1893), c. 380. amend any certificate of incorporation
Virginia. Code (1887), 1145. which fails to express the true object
Consult also the statutory provisions and purpose of the corporation, so
referred to supra, note I, p. 527. as to truly set forth such object and
For change of name of a corporation by purpose. N. Y. Laws (1890), c. 563,
amendment or otherwise see the title 7, as amended Laws (1892), c. 687
NAMES. (Birds. Rev. Stat. (1896), p. 651, 7).
1. For forms of notices of motions or Consult also list of statutes cited supra,
applications, generally, consult the title note i, p. 527
MOTIONS. 3. For formal parts of petitions of this
2. New York. The supreme court character, generally, see the title PETI-
may, upon due cause shown and proof TIONS.
made, and upon notice to the attorney- 4. New York. N. Y. Laws (1800),
general and to such other persons as c. 563, as amended Laws (1890), c. 687
the court may direct, and upon such (Bird's Rev. Stat. (1896), p. 651, 7).
534 Volume 5.
6393. CORPORATIONS. 6393.
I. That it now is, and since the second day of January, i898, has
been, a corporation duly incorporated, organized and existing under
and by virtue of the laws of the state of New York.
II. That on said second day of January, i89, the original certifi-
cate of incorporation of said Northport Company was filed and
recorded in the office of the secretary of the state of New York as
by law in such cases required.
III. That on the fifth day of January, i898, a certified copy of
said original certificate of incorporation was filed and recorded in
the office of the clerk of Suffolk county, state of New York, as in
such cases by law required.
IV. That a copy of said original certificate of incorporation of the
Northport Company is hereto annexed, marked Exhibit A and made
a part of this petition.
V. That said original certificate of incorporation fails to express
the true object and purpose of said corporation, the said Northport
Company.
VI. That the true object and purposes of the said corporation,
the said Northport Company, was at the time of its said incorporation,
and ever since has been and still is, as follows, to wit: (Here set out
the true object and purpose of the corporation.}
Wherefore, in accordance with and under the provisions of the
New York Laws of 1890, chapter 563, section 7, as amended by the
New York Laws of 1897, chapter 687, your petitioner, the said
Northport Company, prays for an order of the court upon such terms
and conditions as it may impose, directing the amendment of the
said original certificate of incorporation of said corporation,
the said Northport Company, so as to truly set forth the object and
purpose of said corporation, in such manner that the amended certi-
ficate of incorporation may conform to and be in the words and
figures as set out in a certain proposed amended certificate of incor-
poration heretofore by your said petitioner made and executed, and
duly signed and acknowledged by the directors of said corporation,
which said proposed amended certificate of incorporation is hereto
annexed, marked Exhibit B and made a part of this petition, and for
such other and further relief as to the court may seem just and
proper.
( , The Northport Company,
By John Doe, President.
State of New York, \
County of Suffolk. \ ss '
I, John Doe, being first duly sworn, upon oath say that I am the
president of The Northport Company, the petitioner named in the
foregoing petition; that the foregoing petition is true of my own
knowledge except as to the matters therein stated to be alleged upon
information and belief, and that as to those matters I believe it to
be true; that I have affixed the corporate seal of said corporation to
said petition and signed the name of said corporation to said petition
on behalf of said corporation by authority of its board of directors.
John Doe.
Sworn to before me this second fay of March, i898.
(SEAL) Norton Porter, Notary Public.
535 Volume 5.
6394. CORPORATIONS. 6395.
Form No. 6394^
In the matter of the petition of "1
the Grand Lodge of the Order In the Court of Common Pleas No. 1,
of United Workmen of Penn- [ of Allegheny County, of the October
sylvania for certain amend-
ments and alterations in the
and November Term, i&85. No.
91.
charter of said order.
To the Honorable Judges of the Court of Common Pleas of Allegheny
County:
The petition of the Grand Lodge of the Ancient Order of United
Workmen of Pennsylvania respectfully represents:
That the petitioner, the Grand Lodge of Ancient Order of United
Workmen of Pennsylvania, is an association incorporated by act of
assembly, approved March 9, 1871, which said act reads as follows:
{Here was set out the acf); that said corporation is embraced in
corporations of the first class, specified in section two of the act of
April 29, 1874, entitled "An Act to provide for the incorporation
and regulation of certain corporations," and its supplements; that
the corporation, in pursuance of the said act of 1874, being desirous
of altering and amending the articles and conditions of its said act
of incorporation, duly adopted, at the regular annual session, held in
January, i885, the following amendments: (Here was set out specifi-
cally the amendments adopted^
Your petitioner therefore prays the honorable court to order a decree
that the amendments and alterations above specified be approved,
and made a part of the charter of the said Grand Lodge of Ancient
Order of United Workmen of Pennsylvania.
In witness whereof, the corporate seal of said corporation has been
hereto affixed, duly attested, this twenty- fifth day of October, iS>85.
(SEAL) Joseph C. Smith, Grand Master Workman.
Attest: Joseph M. McNair, Grand Recorder.
(A cknowledgment. )
e. Decree. 3
(1) INTERLOCUTORY.
Form No. 6 3 9 5 . 4
(Precedent in In re First Presb. Church, in Pa. St. 157. ) 5
1. Pennsylvania. P. L. (1874), p. 73 4. Pennsylvania. P. L. (1869), p. 82.
(Bright. Pur. Dig. (1894), p. 409, 24). Compare P. L. (1874), p. 73 (Bright.
Consult also list of statutes cited supra, Pur. Dig. (1894), p. 409, 24), provid-
note i. p. 527. ing for a similar decree in cases of
This petition is based on the facts in In amendment of charter of an ordinary
re Grand Lodge, etc., no Pa. St. 613. corporation. Consult also list of stat-
2. Petition should state all facts neces- utes cited supra, note i, p. 527, for
sary to enable the court to act under- similar provisions in other jurisdic-
standingly; nothing should be left to tions.
inference. The petition in In re Grand 5. Another Precedent. In In re Grand
Lodge, etc., no Pa. St. 613, was defec- Lodge, etc., iroPa. St. 615, the follow-
tive for this reason. ing decree amending the charter of in-
3. For the formal parts of decrees or corporation is given: "And now, to
orders, generally, consult the titles DE- wit, March qth, iSSj, the foregoing
CREES and ORDERS. amendments and alterations of the
536 Volume 5.
6396. CORPORATIONS. 6396.
In the Court of Common Pleas No. 2, of Allegheny County.
In the matter of the application of First~\
Presbyterian Church of Bloom field for I
amendment of charter and change of j
name.
And now, November 17th, i8<&, the foregoing petition exhibited in
open court, and it appearing to the court that due notice of this
application and these proceedings were given to the' 'Auditor-General
of Pennsylvania, on the 15th day of November, i8< (proof thereof
being filed in this court) ; and the court, upon consideration thereof,
being of opinion that said amendment of the charter and change of
name of said corporation will be lawful, beneficial, and not injurious
to the community, do direct said petition, or writing, to be filed in
the office of the prothonotary of the court, and that notice thereof
be inserted in one newspaper printed in said county for three weeks,
setting forth that said application has been made, and that a decree
will be made on the 5th day of January, iS83, at 10 o'clock A. M.
conformably to the prayer of the petition, unless sufficient reason
be shown why the same should not be made.
By the court,
Christopher Magee, Judge.
(2) FINAL.
Form No. 6396.'
(Precedent in In re First Presb. Church, in Pa. St. 159.)*
( Title of court and cause as in Form No. 6895. )
And now, to wit, June 21th, iS85, it appearing to the court that
the order of the court made November 19th, iS84, as to the notice to
be inserted in a newspaper printed in the county for three weeks, set-
ting forth that said application had been made, and that a decree
would be made on \htfifth day of January, i885, at ten o'clock A. M.
conformably to the prayer of the petition unless sufficient reason be
Act of Incorporation of the Grand and the Commercial Gazette; and that
Lodge of the Ancient Order of United the same will be granted on April ^th,
Workmen of Pennsylvania having been iS^, unless exceptions are filed thereto
duly presented to this court, in order before said date."
that the same might be deemed and See also In re First Presb. Church,
taken to be a part of the Act of Incor- 107 Pa. St. 544, for another order of this
poration or Charter of said Grand character.
Lodge, and it appearing to the court 1. Pennsylvania. See supra, note
that such amendments are lawful and i, p. 527. See also In re First Presb.
beneficial, and do not conflict with the Church, 107 Pa. St. 543, for another
requirements or the Act of the General order of this character.
Assembly of this commonwealth, en- 2. In this case it was held that the
titled ' An Act to provide for the Incor- court of common pleas might change
poration and Regulation of certain the name of a corporation to that of
Corporations,' approved the 2gth day another corporation, but that the
of April, 1874, nor with the constitution change did not invest the corporation
of this state, it is hereby ordered and under its new name with any property,
decreed that notice thereof shall be trusts or charter rights of the corpora-
given by publication, in accordance tion whose name it had taken. In re
with the statute in such case made and First Presb. Church, in Pa. 156.
provided, in the Chronicle, Telegraph.
537 Volume 5.
6396.
CORPORA TIONS.
6397.
shown why the same should not be done, has been complied with,
and no sufficient reason having been shown why the said amendment
of the charter and change of name of the said corporation should
not be made, it is now ordered, adjudged and decreed that the name
of said corporation shall be the Fourth Presbyterian Church of Pitts-
burgh, and that said amendment and change of name shall be
deemed and taken (when duly recorded) to be a part of the charter
of said corporation; and it is further ordered that said amendment
shall be recorded in the office for the recording of deeds, in and for
the said county of Allegheny.
By the Court:
Christopher Magee, Judge.
II. CONSOLIDATED CORPORATIONS. 1
1. Proceedings by or on Behalf of. 2
1. For statutory provisions relating to
the consolidation of corporations, gen-
erally, consult the following:
Colorado. Mills' Anno. Stat. (1891),
625 et seq.
Illinois. Starr & C. Anno. Stat.
(1896), p. 1036, pars. 80-82.
Maryland. Pub. Gen. Laws (1888),
art. 23, 39.
Maine. Laws (1891), c. 84.
Nevada. Gen. Stat. (1885), 1075,
1076.
Pennsylvania. Bright. Pur. Dig.
(1894), p. 413, 38.
Tennessee. Code (1896), 2024-
2544.
Utah. Rev. Stat. (1898), 340.
See also list of statutes cited supra,
note i, p. 527.
For statutory provisions relating to
the consolidation of railroad corpora-
tions consult the following:
Alabama. Civ. Code (1886), 1580.
Arizona. Rev. Stat. (1887), 317.
Arkansas. Sand. & H. Dig. (1894),
6188, 6189.
California. Civ. Code (1897), 361,
473-
Colorado. Mills' Anno. Stat. (1891),
604 et seq.
Connecticut. Gen. Stat. (1888),
3443 et seq.
Florida. Rev. Stat. (1892), 2248.
Georgia. 2 Code (1895), 2173 et
seq.
Illinois. Starr & C. Anno. Stat.
(1896), p. 3236, par. 23; p. 3240, par. 32;
p. 3241, par. 33 et seq.
Indiana. Horner's Stat. (1896),
3556, 395L 3965-3979-
Kansas. I Gen. Stat. (1897), pp.
761-763.
Maryland. Laws (1890), c. 553.
Michigan. How. Anno. Stat. (1882),
3343 et seq.; Pub. Acts (1891), p. 277.
Minnesota. Rev. Stat. (1894), 2715
et seq.
Missouri. Rev. Stat. (1889), 2567.
Montana. Civ. Code (1895), 911-
924.
Nebraska. Comp. Stat. (1897),
1764 et seq.
New Jersey. Gen. Stat. (1896), pp.
2635-2719.
New Mexico. Comp. Laws (1885),
2702 et seq.
New York. Birds. Rev. Stat. (1896),
pp. 2530, 2531, 2552-2558.
Ohio. Bates' Anno. Stat. (1897),
3386 et seq.
Oklahoma. Stat. (1893), 1016 et
seq.
Pennsylvania. Bright. Pur. Dig.
(1894), p. 1801, 107 et seq.
South Carolina. Rev. Stat. (1893),
1615 et seq.
South Dakota. Dak. Comp. Laws
(1887), 2986.
Tennessee. Code (1896), 2024-
2544-
Texas. Rev. Stat. (1895), 4529.
Utah. Rev. Stat. (1898), 435.
Washington. Ballinger's Codes &
Stat. (1897), 4304.
West Virginia. Co fa (1887), c. 54,
53-
Wisconsin. Sanb. & B. Anno. Stat.
(1889), 1833.
Wyoming. Rev. Stat. (1887), 562.
2. Proceedings by and against corpora-
tions, generally, see supra, note I,
p. 527.
Sufficiency of Averment of Consolida-
tion. In the Matter of Minneapolis,
538
Volume 5.
6397.
CORPORATIONS.
6397.
a. To Enforce Consolidation Agreement. 1
(1) BILL IN EQUITY.
Form No. 6397.*
In the Court of Common Pleas, No.
4, for the City and County of
Philadelphia. Of the December
Term, iS89. No. 367. Sitting
in Chancery.
The Philadelphia and Reading
Railroad Company, plaintiff,
against
The River Front Railroad Com-
pany, defendant.
To the Honorable Judges of the said Court:
Your orator complains and says that:
I. The plaintiff, the Philadelphia and Reading Railroad Company,
was incorporated under the act of assembly of this commonwealth,
entitled "An Act to authorize the governor to incorporate the Phila-
delphia and Reading Railroad Company," approved April 4, 1833,
under which it constructed and now owns the railroad extending
etc., R. Co., 36 Minn. 481, where peti-
tioner instituted proceedings to con-
demn a crossing at grade over the right
of way of another company, it was held
that the allegation set forth as the peti-
tioner's creation and existence as a con-
solidated corporation was sufficient.
These allegations were as follows:
"Your petitioner, the Minneapolis and
St. Louis Railway Company, avers that
on the yfrjf day oijune, A. D. i8<?/, it
was constituted a corporation for rail-
way purposes, under the corporate
name of the Minneapolis and St. Louis
Railway Company, and vested with and
now owns and possesses all the rights,
properties and franchises of the Min-
neapolis and St. Louis Railway Company
(that certain corporation created by and
existing under chapter 66 of the Special
Laws of the legislature of the territory
of Minnesota, entitled ' An act to incor-
porate the Minnesota Western Rail-
road Company," approved March 3,
1853, and the several acts amendatory
thereof), the Minneapolis and Duluth
Railway Company (a corporation duly
created and existing under the laws of
the state of Minnesota), the Minnesota
and Iowa Southern Railroad Company
and the Fort Dodge and Fort Ridgely
Railroad Company (each a corporation
for railway purposes, duly organized
and existing under the general incor-
poration laws of the state of Iowa), by
and through certain consolidation pro-
ceedings and agreements entered into
between said companies severally, pur-
suant to the laws aforesaid, the general
laws of this state and similar general
laws in the state of Iowa."
After consolidation is completed by the
filing of the certificate with the secre-
tary of state, the new corporation
succeeds to the rights, powers and fran-
chises of the original corporation upon
the election of a board of directors. In
a pleading by the new corporation, all
these facts must be affirmatively al-
leged. Mansfield, etc., R. Co. v. Brown,
26 Ohio St. 223.
Must be Sued in Name of Consolidated
Corporation. An action by or against
a corporation, brought prior to its con-
solidation with another corporation,
cannot after consolidation be prose-
cuted by or against it or in its original
name. Kansas, etc., R. Co. v. Smith,
40 Kan. 192. The new corporation
may be substituted in place of the
original. See California Cent. R. Co.
v. Hooper, 76 Cal. 404. But compare
Cunkle v. Interstate R. Co., 54 Kan.
194, as to the time of substitution. The
new corporation by adopting a petition
in error of one of the constituent cor-
porations thereby becomes substitute
as a party in the court below on a new
trial therein. Wichita, etc., R. Co. v.
Quinn, 57 Kan. 737.
1. For forms relating to specific enforce-
ment of contracts, generally, consult the
title SPECIFIC PERFORMANCE.
2. This bill is based upon the facts of
the case of Philadelphia, etc., R. Co. v.
River Front R. Co., 168 Pa. St. 358.
For formal parts of bills in equity,
generally, consult the title BILLS IN
EQUITY, vol. 3. p. 417 et seq.\ of com-
plaints and petitions, consult the title
COMPLAINTS, vol. 4, p. 1019 et seq.
539
Volume 5.
6397. CORPORATIONS. 6397.
from the city of Philadelphia to various points in the interior of this
state; that the terminus of the road is in the city of Philadelphia at a
point known as Port Richmond, the southern boundary of the prop-
erty of said company at that place being Cumberland street, in the
eighteenth ward of said city.
II. That by a supplement to said act of assembly, approved April
12, 1864, entitled {Here was set out title of the act),'*- the right to make
lateral or branch roads, leading from the main line of its railroad to
places or points in any of the counties into or through which the
said main line may pass, was conferred upon the Philadelphia and
Reading Railroad Company.
III. That the defendant, the River Front Railroad Company, was
incorporated on the fifteenth day of May, i87, under the provisions
of an act of assembly, approved April 4, 1868, entitled (Here was set
out title of the act)*
IV. That by the twelfth section of said act of April 4, 1868, it is
provided that " no corporation formed thereunder shall enter upon
or occupy any street, lane or alley in any incorporated city without
the consent of such city being first obtained."
V. That in i877 the River Front Railroad Company and the Phila-
delphia and Reading Railroad Company each proposed building a branch
railroad upon the same streets in the city of Philadelphia, and it was
agreed between them that the two companies should build and own
jointly a single line between Callowhill and Cumberland streets, and
an ordinance of the city of Philadelphia was passed and approved
May 21, 1877, entitled {Here was set out title of ordinance)?
VI. That the legal effect of the ordinance was to give the consent
of the city of Philadelphia to both of said railroad companies to enter
on and occupy the streets named therein.
VII. That in accordance with the agreement aforesaid, and the
provisions of the ordinance mentioned, the two railroad companies
did construct jointly in the year i881 a double track railroad extend-
ing from the south side of Cumberland street along Beach street to
Shackamaxon street; thence through private property to Delaware
avenue and along Delaware avenue to Callowhill street, in the eleventh
ward of the said city, and the cost of construction was borne equally
1. The title of the act referred to in the from the point of connection with the
text was as follows: "An Act extending Pennsylvania Railroad as then located,
so much of the provisions of the act to constructed, and in use at Delaware
incorporate the Pennsylvania Railroad avenue and Dock street, by such route
Company, approved April I3th, 1846, as as should be approved by the select
relates to the making of lateral or and common councils of the city of
branch railroads to the Lebanon Valley Philadelphia, to a point of connection
and Philadelphia and Reading Railroad with the Philadelphia and Trenton
Companies." Railroad at its Kensington depot
2. The title of the act referred to in the grounds at Harrison and Leib streets."
text was as follows: "An Act to au- 3. The title of the ordinance referred to
thorize the formation and regulation in the text was as follows: "An ordi-
of railroad companies, for the purpose nance to authorize the River Front
of constructing, operating, and main- Railroad Company and the Philadel-
taining a railroad for public use for phia and Reading Railroad Company
the conveyance of persons and prop- to severally and jointly occupy and use
erty to be located in the city and certain streets for railroad purposes."
county of Philadelphia and to extend
540 Volume 5.
6397.
CORPORA TIONS.
6397.
by the said two companies, and the same is owned by them as equal
tenants in common.
VIII. That the said railroad until May 1, i&89, was maintained and
operated by both the said companies jointly under the terms of an
agreement, a copy of which*, marked Exhibit Z>, is annexed as part
of the bill. 1
1. Agreement for joint control of track,
marked Exhibit D and referred to in
the text, was as follows:
"Agreement between Philadelphia and
Reading Railroad Company and the River
Front Railroad Company.
Rules for the government of the Rail-
road on Delaware avenue, Philadelphia,
between Cumberland street and Callo-w-
^zV/street. Taking effect May tst, i8<?.
There shall be appointed a Joint Dis-
patcher, whose sole duty shall be the
traffic management of the line between
Cumberland and Callowhill streets, on
Delaware avenue.
The maintenance of the line shall be
divided between the two interests in
such a manner that the Engineer's de-
partment of the Reading's interest shall
have charge of the maintenance of the
line for twelve (12) months at a time,
and that of River Front Railroad for
like periods, neither interest, except by
an agreement, to retain charge for a
longer continuous period than one year,
it being understood that the first year's
management, dating from May /st, iScfe,
and terminating April joth, i8<?j>, shall
be assumed by the River Front Rail-
road Company.
The intention of the joint ownership
is, that the cost of maintaining the line,
and all other expenses, except the pay
of the Dispatcher, shall be borne in
proportion to the actual tonnage repre-
sented by the two interests, but the
strict enforcement of the actual tonnage
method may, by mutual consent, be
suspended and instead an estimated
weight, to be agreed upon, may be ap-
plied to each loaded car, which until the
removal of the actual weight method
shall become the basis for determining
the proportion of expenses chargeable
to the respective interests, or in lieu of
cither of the foregoing methods, having
in view more especially the avoidance of
the expense that would be incurred in
keeping an accurate account of cars
moved, and so long as it shall be mu-
tually satisfactory, it may be proper to
assume that there has been an equal
division of the tonnage between the re-
spective interests of the parties to this
agreement, and the expenses may be
so adjusted, subject, however, to an im-
mediate restoration of the tonnage basis
whenever a desire that such be done be
expressed by either interest.
The adjustment of the tonnage, and
all other accounts appertaining to the
operation and maintenance of the line,
shall be made quarterly through such
officers as shall be designated by the
respective interests.
The pay of the Dispatcher shall be
fixed by the joint interests, and each
shall bear an equal s!iare of the same,
each interest paying direct to the Dis-
patcher their proportion of the salary,
the purpose of this method being that
the Dispatcher shall keep in constant
mind, that as between the two interests
he is a joint representative of a joint
ownership; it is also agreed that under
no circumstances will it be proper for
either interest to pay to the Dispatcher
more than one-half of the agreed salary,
and that an expression of dissatisfaction
from either interest shall be considered
a good and sufficient reason for the
Dispatcher's removal.
The charge for tolls and motive pow-
er, applying from May ist, iS<?.2, which
each interest shall make and collect
from Consignees or Shippers upon cars
delivered or taken from private sidings,
shall be one dollar ($/.oo) per eight-
wheeled loaded car, which rate shall
continue in force until changed by an
agreement between the proper officers
of the respective interests.
All questions as to the management
of the joint line that may arise here-
after shall be referred to the General
Managers of the joint interests, or to
such officers as they may delegate for
that purpose.
The foregoing has been approved and
accepted on behalf of the Receivers of
the Philadelphia and Reading Railroad
Company.
By/. E. Wootten,
General Manager.
The foregoing has been approved and
accepted on behalf of the River Front
Railroad Company.
By O. E. McClellan."
541
Volume 5.
6397. CORPORATIONS. 6397.
IX. That at present the River Front Railroad Company is leased
and operated by the Pennsylvania Railroad Company, a corporation
existing under the laws of this commonwealth, and that the president
of the said River Front Railroad Company is one of the vice-presidents
of the Pennsylvania Railroad Company, and the board of directors of
the former company is composed entirely of persons who are also
directors of the latter.
X. That the railroad of the River Front Railroad Company extends
both north and south of the joint railroad before mentioned, and
connects the railroad of the Pennsylvania Railroad Company at Dock
street, in the fifth ward of the city of Philadelphia, with the Philadel-
phia and Trenton Railroad Company, which is leased and operated by
the Pennsylvania Railroad, at a point in the twenty-fifth ward of said
city.
XI. That the said railroad between Callowhill street and Cumber-
land street is also connected with the main line of the Philadelphia
and Reading Railroad at a point just north of Cumberland street, and
the traffic of said railroad between Callowhill street and Cumberland
street is exclusively transported in cars to the separate railroads of
the Pennsylvania Railroad and the Philadelphia and Reading Railroad
Company.
XII. That numerous warehouses, wharves and other places of
business are situated along the line of the common railroad, and
since its construction, turnouts and sidings have been constructed
connecting the same with said warehouses, wharves and places of
business.
XIII. That in pursuance of the agreement referred to of May 1,
i882, Exhibit D, the plaintiff and defendant alternated in taking
charge of the maintenance of said line of railroad on Delaware avenue
up to the first day of May, i887, when it became the right of the
Philadelphia and Reading Railroad to take charge of the mainten-
ance of said line under said agreement.
XIV. That said company was then in the hands of receivers, and
at the instance of the River Front Railroad Company, permitted the
company to take charge of the maintenance of said line on Delaware
avenue from the first day of May, i887, to the first day of May, 1888.
XV. That this arrangement was entirely provisional and only had
application to the year beginning May 1, i887, and ending May 1,
1888. That the River Front Railroad continued in charge of said
railroad during the year extending from May, 1888, to May, i889.
XVI. That prior to the first day of May, i889, the plaintiff desired to
take charge of the maintenance of the line for the year extending
from they?rj/ day of May, i%89, in accordance with said agreement, and
notified the River Front Railroad Company of its purpose so to do, and
to this end entered into possession of the railroad on Delaware
avenue.
XVII. That the River Front Railroad Company then, unlawfully and
in violation of the terms of said agreement, procured a large number
of men and placed them along the line of the railroad, and forcibly
prevented the plaintiff from making the repairs necessary to maintain
the line on said Delaware avenue, and further obstructed and inter-
542 Volume 5.
6398. CORPORATIONS. 6398.
fered with the plaintiff in the exercise of the rights vested in it by the
terms of the agreement in regard to the maintenance of said road.
XVIII. That in order to preserve the public peace the mayor of
the city of Philadelphia directed the maintenance of said line on
Delaware avenue to be take'n in charge of the department of public
safety of the city of Philadelphia, and that the road since May 1, i8<?,
has been maintained by the mayor of the city of Philadelphia, acting
through the department of public safety. That the River Front
Railroad Company denies the right of the Philadelphia and t Reading
Railroad Company to take charge of the said road at any time, under
said agreement, and the plaintiff is thereby deprived of the rights
vested in it under the agreement, including the right to take charge
and maintain said road.
Wherefore it prays:
i st. That the defendant shall keep, preserve and perform all the
terms, covenants and conditions of the agreement of May 1, i&?#,
and especially the covenant authorizing the Philadelphia and Reading
Railroad Company, in each alternate year, to take charge of the main-
tenance of the line on Delaware avenue, as set forth in the agreement.
zd. That an injunction be issued restraining the River Front Rail-
road Company, its officers and agents, from obstructing or interfering
with the plaintiff, its officers and agents, in taking charge of and
maintaining the said line during said period.
3d. ( General relief. )
George P. Smith, Plaintiff's Solicitor.
(2) ANSWER.
Form No. 6398.'
Supreme Court. New York County.
The Bradford, Eldred and Cuba Railroad
Company, and Thomas C. Platt, as re-
ceiver, plaintiffs,
against
The New York, Lake Erie and Western
Railroad Company, defendant.
The amended answer of the defendant to the complaint of the
plaintiff in the above entitled action:
The said defendant, answering the said complaint
First. Denies that he has any knowledge or information sufficient
1. This answer is copied from the record to guarantee payment of interest on
in the case of Bradford, etc., R. Co. v. bonds of that other, in case of inability
New York, etc., R. Co., 123 N. Y. 316. of the latter to do so, equity would not
The complaint in that case sought to decree specific performance of such
enforce a certain consolidation and contract.
traffic agreement between the plaintiff For the formal parts of answers, gen-
and the defendant, and for an account- erally, consult the titles ANSWERS IN
ing. It was held that, where two rail- CODE PLEADING and ANSWERS IN
road companies had entered into an EQUITY; of pleas, generally, consult
agreement by which one was to have the title PLEAS.
virtual control of the other and it was
543 Volume 5.
6398. CORPORATIONS. 6398.
to form a belief of the allegations contained in the second paragraph
thereof; that by order of this court, duly made and entered on the
fourth day of February, iS85, or otherwise in a certain action then
depending, wherein the Metropolitan Tnist Company, of the city of
New York, was and is plaintiff, and the plaintiff company herein was
defendant, the plaintiff Thomas C. Platt was appointed receiver of
the property and franchises of this plaintiff company, with the right
to sue on behalf of the said company, or that said Thomas C. Platt, duly
or otherwise, qualified and entered upon the performance of his
duties as such receiver.
Second. Admits the allegation of the fourth paragraph of said
complaint, that at the several times thereafter set forth in said com-
plaint, the railroads of the plaintiff company and of the defendant
connected with each other at two places, namely, at Wellsville and
Cuba, but denies the allegation of said fourth paragraph that said
plaintiff's road, by reason of said connection or otherwise, was tribu-
tary to the defendant's road, or in a situation to exchange traffic and
business with it to mutual advantage, or that by reason of the alleged
relation of the said roads to each other, or because a large or any
amount of traffic and business could be delivered to the defendant,
or be diverted from it to rival lines (as to all of which defendant
denies that it has any knowledge or information sufficient to form
a belief), or otherwise, the defendant desired and sought to establish
close and permanent or any business or other relations with the
plaintiff company.
And defendant denies that it has any knowledge or information
sufficient to form a belief that prior to the 12th day of March, iS83,
negotiations, as alleged in the complaint or otherwise, were opened
and carried on between the plaintiff company and this defendant, or
that all the alleged facts in the premises were fully or at all consid-
ered, or that the amount of business and traffic, present and pro-
spective, of the plaintiff company, if any, its current earnings, the
amount of its outstanding mortgage indebtedness, the loss, if any, to
the defendant, if the plaintiff company should fall under the control
of a rival line or lines, or the alleged fact that such rival lines desired
to obtain control of the plaintiff company's road, or that all and
singular or any of the several matters aforesaid were fully or at all
discussed or considered in the course of said alleged negotiation, or
that in view of the alleged character and permanency of the relation
alleged to be contemplated between the two roads or otherwise, it
was recognized by both or either of said companies that it would be
desirable or proper that the defendant should directly or indirectly
elect the directors of the plaintiff company from time to time, or
generally control the management of the plaintiff company, or that
this defendant considered how such general control or management
could be lawfully or otherwise secured to the defendant.
And this defendant, on its information and belief, alleges that all.
the matters set forth in said fourth paragraph, beginning with the
words " by reason of the relation," at folio sixth thereof down to and
including the words "lawfully secured to the defendant company"
at folio ninth thereof, are immaterial and irrelevant to the statement
544 Volume 5.
6398.
CORPORA TIONS.
6398.
of plaintiff's alleged cause of action, are inadmissible as evidence,
and are not properly pleaded in said complaint.
And defendant denies that as the result of the said alleged
negotiations and inquiries, or with a view, or for the purpose of
establishing permanent or any business or other relations between
the plaintiff company and this defendant or otherwise, the said
alleged agreement was entered into by the plaintiff company and this
defendant, as alleged in said complaint, or otherwise.
And this defendant, upon its information and belief, alleges that,
at or about the same time, in that behalf in said complaint alleged,
Hugh J. Jewett then being the president of the defendant, signed a
pretended agreement in the words and figures set forth in the com-
plaint, 1 with the name of this defendant, and A. R. Macdonough, then
being the secretary of the defendant, by the direction of said Jewett^
assumed to affix to said pretended agreement the corporate seal of
1. The agreement referred to in the text
was as follows: " This agreement,
made this twelfth day of March, A. D.
i&Sj, by and between the New York,
Lake Erie and Western Railroad Com-
pany, party of the first part, and the
Bradford, Eldred and Cuba Railroad
Company, herein called the Eldred Com-
pany, party of the second part, wit-
nesseth: Whereas, the railroad of the
Eldred Company extending from a con-
nection with the railroad of the Erie
Company at Wellsville to a connection
with the railroad of the Bradford, Bor-
dell and Kinzna Railroad Company at
Eldred, with a branch extending from
its Little Genesee station to a further
connection with the railroad of the
Erie Company at Cuba, has been con-
structed by parties in sympathy with
the Erie Company, with a view of con-
tributing to the business of said com-
pany, and of protecting it against
hostile lines, now in process of con-
struction; And, whereas, said Eldred
Company may require assistance from
the Erie Company in the completion of
its said raihoad, and in its successful
establishment, operation and mainte-
nance. Now, in consideration of the
premises, it is agreed as follows:
The Eldred Company agrees : First.
That it will at all times deliver to said
Erie Company, for transportation, all
the freight and passengers that it can
lawfully control or influence, destined
to points that can be reached by way
of the railroad of the Erie Company or
its connections, and will use its in-
fluence to promote the interests and
the business of the Erie Company so
far as it can, with proper regard for its
own interests. Second. That for the
5 E. of F. P. 35 5
protection of the Erie Company in ren-
dering assistance to the Eldred Company
under this contract, it will cause to be
deposited with the Erie Company a
majority of the capital stock of the
Eldred Company, in such manner as
shall be required, upon which, so long
as the management of the Eldred Com-
pany shall be satisfactory to it. the
Erie Company will give, or cause to be
given, to such representative of the
Eldred Company as shall be designated
by it, the right to vote upon the stock
so deposited.
The Erie Company agrees: First.
That so far as it can, with a proper
regard for its own interests, k will use
its influence and exercise its control to
promote the interests and the business
of the Eldred Company. Second.
That, upon condition that the corporate
control of the Eldred Company shall
become and remain vested in the Erie
Company, as above provided, the Erie
Company will make good any deficien-
cies in the net earnings of the Eldred
Company to meet the interest upon its
present bonded indebtedness, from
time to time, as the same becomes due
and payable, and for any and all
advances so made by it. with interest
thereon, as well as for any and all
advances made to said Eldred Company
by the Erie Company for other purposes,
with interest thereon, the Erie Company
shall have, and is hereby granted, a
first lien upon the railroad franchises
and property of the Eldred Company
next after its bonded indebtedness
aforesaid, and a first charge upon its
surplus earnings next after the pay-
ment of the accruing interest upon its
said bonded indebtedness. This con-
lo Volume 5.
6398. CORPORATIONS. 6398.
this defendant, and to attest the same as secretary of this defendant;
but defendant denies that said Jewett signed the same as president of
the defendant or by its authority, or that said Macdonough affixed
said seal and attested the same as secretary of the defendant or
by its authority. And defendant alleges that neither this defend-
ant nor its board of directors assumed, or did in fact authorize the
execution of said pretended agreement, and the same, if made as
above set forth, was not made by this defendant, and is not binding
upon it.
And defendant, upon its information and belief, alleges that neither
the plaintiff company nor this defendant had any power, corporate
or otherwise, to enter into said pretended agreement, and the same,
if made by them or either of them, as alleged in the complaint or
otherwise, was and is illegal and void.
Third. Denies that it has any knowledge or information sufficient
to form a belief of the allegation of the fifth paragraph of said com-
plaint; that the said plaintiff company has duly or otherwise per-
formed all and singular, or any of the acts and things specified in the
said alleged agreement to be performed by said plaintiff company.
And this defendant denies that it has had or enjoyed all or any of
the benefits and advantages, if any there were, which this defendant
denies, contemplated and provided for in and by said alleged agree-
ment, or that from the date thereof until the alleged appointment of
a receiver, as therein mentioned, this defendant has had the general
or other direction and control of the plaintiff company's business and
affairs or of the income and earnings of its road, or that the cor-
porate control of the plaintiff company did become and remain
vested in the defendant, as alleged to be contemplated and provided
for in said pretended agreement, or continued so to remain until, by
the alleged wrongful acts and breaches of said alleged agreement by
the defendant, as therein set forth, the appointment of a receiver of
the plaintiff company's franchises and property became necessary, if
indeed it ever did.
And defendant denies that it was by the wrongful acts and
breaches of said alleged agreement by this defendant, as in said
complaint alleged, or in any manner, that the appointment of a
receiver of the said plaintiff company's franchises and property
became necessary; and this defendant denies that it has any knowl-
edge or information sufficient to form a belief that such appointment
did in fact ever become necessary.
And this defendant, upon its information and belief, alleges that
if any of the acts of the description set forth in said sixth paragraph
were attempted to be performed by any person or persons then
being the officer or officers of the plaintiff company or of this
defendant, they were not performed by such person or persons as
such officer or officers, or with the authority of either said plaintiff
company or the defendant, and were and are not the acts of said
tract shall continue during the cor- attested the day and year first above
porate existence of the companies written." (Signatures of companies
parties hereto. Witness the corporate signed by the presidents, attested by the
seals of the parties hereto set and duly secretaries, and corporate seals attached.)
546 Volume 5.
6398. CORPORATIONS. 6398,
companies, or either of them, or binding upon them, or either of
them.
Fourth. Denies that it has any knowledge or information suffi-
cient to form a belief of the allegation contained in the sixth para-
graph of said complaint, that the bonded indebtedness of the plaintiff
company therein referred to was, as alleged in the said sixth para-
graph, or that the amount and character thereof were well or at all
known to the defendant, as in said seventh paragraph alleged.
Fifth. Defendant denies that it has any knowledge or information
sufficient to form a belief that prior to the first day of July, 1884,
there was a deficiency in the net earnings of the plaintiff company
to meet the interest upon its said alleged bonded debt, or that such
alleged deficiency amounted to the sum of thirty-seven thousand dol-
lars and over, or any sum whatever, and defendant denies that it
provided for and paid said deficiency according to the terms of said
alleged agreement or otherwise.
And defendant, on its information and belief, alleges that hereto-
fore it did from time to time advance various sums to the plaintiff
company, amounting in all to sixty-one thousand dollars; but defend-
ant denies that the same, or any part thereof, were advanced under
or in pursuance of the terms of said alleged agreement.
And defendant denies that it has any knowledge or information
sufficient to form a belief whether, at the times when the semi-
annual instalments upon the bonds mentioned in said seventh para-
graph became due and payable, as therein alleged, there were
deficiencies in the net earnings of the plaintiff company's road to pay
such respective instalments of interest amounting to the respective
sums therein mentioned, or whether the defendant company was
requested to pay the same, or whether the alleged respective
amounts necessary to make good such respective alleged deficien-
cies, or for the payment of such respective instalments of interest
were demanded of the defendant; and defendant denies that it ever
became, or was, or is now, the duty of this defendant to make good
said alleged deficiencies, or to provide, or to pay over to the plaintiff
company the sums mentioned in said seventh paragraph, or any
sums whatever.
Sixth. The defendant denies that it has any knowledge or informa-
tion sufficient to form a belief whether in consequence of its alleged
breach of said pretended agreement, the plaintiff company was
unable to pay the amount alleged to be due for interest upon its said
mortgage bonds, or whether in consequence of such nonpayment the
trustee of said mortgage did, as in the complaint alleged, commence
an action in this court against the plaintiff company for the fore-
closure of said mortgage, or whether in said action the plaintiff,
Thomas C. Platt, was appointed receiver, as therein alleged.
And defendant denies that it has any knowledge or information
sufficient to form a belief as to whether said trustee is ready and
willing to discontinue the said alleged action for foreclosure upon
payment of interest so alleged to be due as aforesaid and since
accrued, and thereupon to cause the said railroad to be restored to
the possession of plaintiff company, or whether, upon such payment
647 Volume 5.
6398. CORPORA TJONS. 6398.
and restoration, the plaintiff company will be ready and willing to give
and restore to defendant company all the pretended rights, benefits
and advantages contemplated by and provided for in said agreement.
And defendant denies that it has any knowledge or information
sufficient to form a belief that said alleged agreement was intended
to be, or is, continuing and permanent, or that the due performance
and execution thereof would not have been interrupted but for the
alleged wrongful conduct of this defendant.
Second.
The defendant, further answering the said complaint, for a second,
separate and distinct answer and defense to the alleged cause of
action therein set forth, repeats the allegations, admissions and
denials in the preceding first defense contained, and alleges that the
said pretended agreement, if made, was made without considera-
tion to this defendant, and was, and is, void in law.
Third.
For a third, separate and distinct answer and defense to the
alleged cause of action set forth in said complaint, this defendant
repeats the allegations, admissions and denials in the preceding first
and second defenses contained, and on its information and belief
alleges that said alleged agreement, if made, was made by this
defendant under a mistake as to the facts in connection therewith;
defendant being induced thereto, by representations made by said
plaintiff company, or its officers and agents, as to the business and
traffic of said plaintiff company, which representations were not true
in fact, and that the pretended consideration to this defendant, if
any there was, for making said alleged agreement has failed and
become of no value.
Fourth.
For a fourth, separate and distinct answer and defense to the
alleged cause of action set forth in the complaint, the defendant
repeats the allegations, admissions and denials in the preceding
defenses contained, and alleges on its information and belief, that if
it is true, as alleged in the complaint, that on or about the fourth day
of February, i&85, or at any time, an action in this court, wherein
the Metropolitan Trust Company, of the city of New York, was and is
plaintiff, and the plaintiff company herein was defendant, the plain-
tiff, Thomas C. Platt, was duly appointed receiver of the property
and franchises of the plaintiff company, that thereupon by reason of
such appointment the said property and franchises and the corpo-
rate control of said plaintiff company become and are now vested in
said receiver, and not in this defendant, as contemplated by said
alleged agreement.
Wherefore defendant demands judgment that the complaint be
dismissed, with costs.
J. A. Buchanan 6 Charles Steele,
Defendants' Attorneys,
21 Cortlandt St., N. Y.
( Verification.}*
1. Consult the title VERIFICATIONS.
548 Volume 5.
6399.
CORPORA TIONS.
6399.
b. To Foreclose Mortgage. 1
ANSWER OF MINORITY STOCKHOLDERS 2 SETTING UP ILLEGAL
CONSOLIDATION.
Form No. 6399 .
New York Supreme Court, County of Westchestcr*
The Farmers' Loan and Trust Company,
as trustee, plaintiff,
against
The New York and Northern Railway
Company, The New York Loan and Im-
provement Company, and The Lincoln
National Bank of the City of New York,
Artemas H. Holmes and Alfred R. Pick,
defendants.
The defendant, AlfredR. Pick, on behalf of himself and other persons
similarly situated, who own and hold preferred and common stock of
the New York and Northern Railway Company, appearing by Simon
Sterne, his attorney, and the defendant, Artemas H. Holmes, owner and
holder of stock of said New York and Northern Railway Company,
appearing by Holmes and Adams, his attorneys, unite in the following
answer, and jointly allege and show to the court as follows, to wit:
Defense No. I.
{Here was set out defense number one^
1. For forms relating to foreclosure,
generally, consult the title FORECLOSURE
OF MORTGAGES.
2. This answer is copied from the record
in the case of the Farmers' L. & T.
Co. v. New York, etc., R. Co., 150
N. Y. 410. The defenses mentioned
in the answer were to an action
brought to foreclose a second mortgage
on the property of the Northern Com-
pany given to plaintiff as trustee. This
mortgage was made in pursuance of an
application for reorganization by the
purchaser of the Northern Company.
It was held that where a majority of
the stock of a corporation owned by
another corporation and the latter as-
sumes control of the business affairs of
the former through its officers and
directors, it assumes the same trust
relation toward a minority of stock-
holders of the controlled corporation
that a corporation itself usually bears
to its stockholders, and that the right of
one corporation to purchase bonds and
stocks of another, even if given by
statute, confers upon the purchaser no
right to employ such stock and bonds
for purposes condemned by equity.
For formal parts of answers, generally,
consult the titles ANSWERS IN CODE
PLEADING AND ANSWERS IN EQUITY; of
pleas, generally, consult the title
PLEAS.
3. Defense Number One, referred to in
the answer, was as follows: " I. That
the said defendant. Alfred R. Pick, is
the owner and holder of record of one
hundred shares of preferred capital
stock of the said New York and Northern
Railway Company, and appears herein
for and on behalf and at the request
of, and is the .representative of the
owners and holders of upwards of fifteen
thousand shares of the preferred stock
and twenty-Jive hundred shares of the
common stock of the said New York and
Northern Railway Company, and that
the said defendant Artemas H. Holmes
is the owner and holder of record of
twelve hundred shares of the common
capital stock of the said New York and
Northern Railway Company.
II. That these defendants admit the
allegations contained in ihejlrst, second,
third 'and fourth subdivisions of the com-
plaint herein.
III. That these defendants answer
549
Volume 5.
6399.
CORPORA TIONS.
6399.
Defense No. II.
V. And these defendants, for a further and separate defense to
the complaint in this action, repeating the allegations hereinbefore
contained, show that the defendant, the New York and Northern
Railway Company, organized and existing under the laws of the state
of Neu> York, to wit, an act of the legislature of the state of New
the allegations contained in theyf/V/*
subdivision of the complaint herein as
follows:
These defendants have no knowl-
edge or information sufficient to form a
belief whether the allegations contained
in said _/f/"/A subdivision, from the com-
mencement thereof to the words "ag-
gregating $1,200,000" correctly state
the contents and description contained
in the mortgage therein referred to, and
leave the plaintiff to make proof thereof
at the trial of this cause.
As to the remaining allegations in the
said fifth subdivision contained, relat-
ing to property acquired subsequently
to the making of the said mortgage,
these defendants have no knowledge
or information sufficient to form a belief
whether the said allegations are true,
or whether the property so acquired
became subject to the lien of the said
mortgage, and therefore deny the same.
And these defendants further show
on information and belief, that the
property so described as having been
subsequently acquired forms a part of
the terminal property of the said com-
pany and is of great value. That a
portion of the consideration paid for
the said property was money derived
from the operation of the said railroad.
And these defendants allege and charge
that the application of such moneys to
the.payments made for the said prop-
erty, instead of applying the same
under the terms of the said mortgage
to the payment of the coupon maturing
June i, 1O2, was in violation of the
provisions contained in the said mort-
gage, and in fraud of the rights of
these defendants and of the stock-
holders of the said company.
And as to the allegations contained
in the subdivision " Va " of the com-
plaint, these defendants have no knowl-
edge or information sufficient to form a
belief whether the said allegations are
true or not, and therefore deny the
same.
IV That these defendants admit the
allegations contained in the sixth and
seventh subdivisions of the complaint,
and with respect to all the matters con-
tained in the eighth and ninth sub-
divisions thereof, these defendants
refer the court to the said mortgage,
and allege that the articles of incor-
poration of the said New York and
Northern Rail-way Company provide that
the said second mortgage shall contain
provisions authorizing and empowering
the trustee only upon written request
of the holders of $2,000,000 in amount
of said bonds, to take proceedings fora
foreclosure of the mortgage upon any
failure to pay the principal debt when
due, and making the principal debt due
upon a continuous failure for twelve
months to pay the interest which shall
accrue after four years following the
date of the bonds, upon any instal-
ment of interest on the said bonds after
presentation of the coupons for such
interest at the place where the same
are made payable by their terms. And
these defendants further allege that
the said second mortgage in this re-
spect does not conform to the articles
of incorporation of the said New York
and Northern Railway Company by
which its execution and delivery is
authorized, and that, therefore, the said
second mortgage is not a valid, legal
and subsisting obligation of the said
New \ork and Northern Railway Com-
pany.
These defendants admit the allega-
tions contained in the tenth subdivision
of the complaint.
And these defendants have no knowl-
edge or information sufficient to form a
belief whether the allegations con-
tained in the eleventh and twelfth sub-
divisions of the complaint are true or
not, and therefore deny the same.
As to the allegations contained in the
thirteenth subdivision, these defendants
deny, on information and belief, that
the coupons therein referred to, or the
bonds to which the same appertained,
were ever presented for payment, or
that any such demand for payment
was made as is contemplated and pro-
vided in and by the terms of the said
mortgage; or that any default has con-
tinued for more than twelve months
after presentation of the said bonds
550
Volume 5.
6399.
CORPORA TIONS.
6399.
York, entitled "An Act to facilitate the reorganization of railroads
sold under mortgage, and providing for the formation of new com-
panies in such cases"; being chapter 430, Laws of 1874, passed May
u, 1874, and the acts amendatory and supplementary thereof, is a
railroad corporation owning and operating a line of railroad extend-
ing {Here was set out description of line of railroad). 1
That it also owns and operates a branch line extending from Cort-
landt station, on its said main line to Getty square "in the town of
Yonkers, county of Westchester. That it owns valuable terminals and
terminal property in the city of New York; that it owns the valua-
and coupons, and demand of payment
thereof.
These defendants have no knowledge
or information sufficient to form a be-
lief whether the allegations contained
in the fourteenth subdivision are true or
not, and therefore deny the same, and
further allege that if the principal of all
the bonds secured by said second mort-
gage has been declared due, it has so
been declared only for the purpose of
furthering the conspiracy hereinafter
charged, between the holders of the
second-mortgage bonds, to wit, the
said New York Central and Hudson
River Railway Company, and the said
defendant the New York and Northern
Railway Company, and in furtherance
of the unlawful purpose hereinafter al-
leged of having the said New York and
Northern Railway Company absorbed
by the New York Central and Hudson
River Railroad Company, and to de-
prive defendant railway company of
the power to pay the interest by the
sale of such property as it may reason-
ably sell, without any detriment to the
security of the bondholders or other
lienors of said New York and Northern
Railway Company, and without detri-
ment or impairment of its duty to
operate and maintain said railway.
With respect to the allegations of the
fifteenth and sixteenth subdivisions of
the said complaint, these defendants al-
lege that the property of the said New
York and Northern Railway Company is
worth much more than the sum of all
the obligations of the said defendant
railway company, and deny that the
property covered by said second mort-
gage is essentially an entirety, and that
it is to the best interest of all con-
cerned, that all of the said property
should be sold in one parcel, and de-
fendants deny that said corporation is
insolvent, but allege that there is no
necessity for the sale of the said prop-
erty of the New York and Northern
Railway Company in one parcel for the
purpose of getting sufficient money to
pay the interest accrued upon the bonds
secured by the said second mortgage,
so to be foreclosed herein, and further
that there is abundant property not im-
mediately necessary for railway pur-
poses, belonging to the said New York
and Northern Railway Company, which
can be sold for the purpose of meeting
the interest charge past due, together
with the interest thereon and all costs
and expenses of this litigation. These
defendants deny that a sale of the said
property in any other way than in one
parcel would be greatly to the detri-
ment and injuriously affect parties in-
terested in said railway company and
its affairs, and allege that such a sale
will not impair or otherwise affect the
work of the said railway company in
the performance of its duty to the pub-
lic, nor injuriously affect the earning
capacity of said railroad, nor impair the
security of the said second mortgage.
And as to all other allegations con-
tained in the said complaint, which are
not herein admitted or denied either di-
rectly or on information and belief,
these defendants say that they have no
knowledge or information sufficient to
form a belief whether they are true or
not, and therefore deny the same."
1. The line of railroad referred to in
the text was described as follows: "Ex-
tending from One Hundred and Fifty-
fifth street in the city and county of
New York, at a point of connection, or
junction, with the road of the Manhat-
tan Railway Company, running thence
northerly and westerly across the Har-
lem river and through the counties of
New York, Westchester and Putnam, at
or near Brewsters, in the town of South
East in the county of Putnam in the
state of New York, at a junction with
the railroads of the New York and New
England and the New York and Harlem
Railroad Companies. "
551
Volume 5.
6399. CORPORATIONS. 6399.
ble bridge built over and extending across the Harlem river, and
other valuable bridges, trestles and viaducts; that its said line of
railway is of great value, and is of great public utility, convenience
and necessity; that it lies midway between and parallel to the lines
of railroad of the New York and Hudson River Railroad Company
and the New York and Harlem Railroad Company, which latter rail-
road is leased to the New York Central and Hudson River Railroad
Company, and both are under the same management and control.
That the main line of the defendant railway company is (giving
length of line of road]. ^ That in addition to said lines of railway the
said defendant railway company owns valuable stations and depots
along its line of railway and also thirty-two (32) acres of terminal
property of very great value in the city and county of New York,
situated upon, at and under the Harlem river, and that it also owns
a large amount of expensive railway equipment and supplies neces-
sary for the maintenance and operation of its railway, and that with
a single exception, to wit, the railroad system owned and controlled
by the said New York Central and Hudson River Railroad Company
and its allied corporations, it is the only railway company having an
entrance by rail into the city of New York, and that the said entrance
by rail into the city of New York is of very great, peculiar and
increasing value to itself and as an inducement to other railway cor-
porations to enter into contracts with it for the use of its road.
These defendants further show, and refer the court to the recitals
of the said second mortgage mentioned in the complaint herein,
that prior to the year i8#7 the said railroad and property, the subject
of this action, was owned and operated by a railroad corporation
oganized and existing under the laws of the state of New York,
called the New York City and Northern Railroad Company. That by
reason of improvident financial operations and management upon
the part of said last named corporation, the said New York City and
Northern Railroad Company, about the year iS82, became involved
and unable to pay the interest charges upon certain mortgages upon
its said railroad and property. That thereafter certain proceedings
were commenced and had in the Supreme Court of the state of Neiv
York for the foreclosure of the said mortgages, and actions were
brought against said last named corporation by various creditors,
more particularly the New York Loan and Improvement Company, one
of the defendants herein. That pending said proceedings, a certain
plan for the reorganization of the said New York City and Northern
Railroad Company was entered into and adopted under and pursuant
to the laws of the state of New York hereinbefore mentioned, by
the owners and holders of the bonds issued under the said mortgages
of the New York City and Northern Railroad Company, which plan
1. Length of road referred to in the all sixty-one and twenty-one one-hun-
text was as follows: "Fifty-four and dredths (61.21) miles, with second track
six one-hundredths (54.06) miles, that and sidings of twenty-three and ninety-
the Yonkers branch is three and ten seven one-hundredths (23.97) miles, mak-
one-hundredths (3.10) miles; that the ing a total mileage of eighty-five and
Mahopac Falls branch is four and five eighteen one-hundredths (85.18) miles."
one-hundredths (4.05) miles, being in
052 Volume 5.
6399. CORPORATIONS. 6399.
was accepted by the stockholders of the said New York City and
Northern Railroad Company, or some of them, and which plan, and
the details of which, are set forth in the articles of incorporation of
the defendant railway company and in the mortgage to the Farmers'
Loan and Trust Company, dajed October 1, iBS7, and referred to in
the complaint herein. That the said plan, among other things, pro-
vided for the formation of a new corporation, to be called the Neiv
York and Northern Railway Company, which said new company was
to obtain and operate the said railroad and property; that the said
new company was to create and issue, and did create and issue,
under the said reorganization securities as follows: {Here were enu-
merated securities^
That the said first-mortgage bonds were to be sold and were sold
for cash at par, the proceeds being intended to be applied and were
applied as in said plan set forth.
That the said second-mortgage bonds were issued to the former
bondholders of the said New York City and Northern Railroad Com-
pany at and after the rate of seventy-five per cent, of the par value of
the said former bonds, to the amount of $2,772,750; that the remain-
der thereof were issued as in said plan set forth.
That the preferred stock was issued to the said former bondhold-
ers for the balance of their holdings and as in said plan set forth.
That the common stock was issued to the holders of the former
stock of the New York City and Northern Railroad Company, share
for share, upon the payment of the sum of ten dollars per share.
That by the terms of said second mortgage it was provided that
the first eight coupons attached to the bonds issued thereunder
should be payable only from net earnings of the company as defined
in the said mortgage; and that the first coupon, the payment of
which was obligatory on the new company, was the coupon maturing
on ihz first day of June, i892.
And these defendants further show that it was also provided in
the said mortgage that the income, tolls, profits, benefits and advan-
tages pertaining to, or to arise or accrue from, the said railway and
railways and property, and the maintenance and operation thereof,
should become part of the security for the payment of the said bonds
and of the coupons thereto appertaining. That for the purpose of
determining the proper application of the earnings of the said com-
pany, the said mortgage contains a specification of the proper
charges to be made against the gross earnings of the company, and
that such specification declares that such charges shall include the
general expenses actually incurred in operating the railroads and
works of the defendant railway company, and keeping the same and
its rolling stock, equipments and appurtenances in good condition
1. Enumeration of reorganization - bonds, payable forty years from date, to
cnrities mentioned in the text were as the amount of $3,200,000, with interest,
follows: " First-mortgage gold bonds, at the rate of four per cent, per annum,
to the amount of $1,200,000, payable said mortgage being dated October i,
forty years from their date, with in- iBfy. Preferred capital stock to the
terest at the rate of five per cent, per amount of $6,000,000, common capital
annum, said mortgage being dated stock to the amount of %j,ooo,ooo."
October i, iZ&f. Second-mortgage gold
553 Volume 5.
6399. CORPORATIONS. 6399.
and repair, the annual taxes, assessments and expenses of keeping
up the organization of the defendant railway company, the sum of
sixty thousand dollars ($60,000) for the annual interest charges upon
the first-mortgage bonds.
And these defendants further show that in the said second mort-
gage it was provided that the trustee thereof, upon default of the
payment of the principal or the interest of said bonds thereby
secured, or any part of said principal or interest, when by the terms
thereof the said principal or the said interest may become due and
payable, shall not proceed against the defendant railway company
by reason of such default as in said mortgage provided, except upon
the written request of the holders of $2,000,000 in amount of said
bonds then outstanding and unpaid or unredeemed, it being intended
by said provision and provisions that the defendant railway company
shall not be harassed by litigation or the said mortgage foreclosed,
except in good faith and by all or nearly all the owners of said
second-mortgage bonds, who may have purchased the same for pur-
poses of investment and income.
And these defendants further allege that it was a strong inducing
element and part of the consideration by which the acquiescence of
the then bond and stock holders to the plan and reorganization was
obtained, and it was the understanding and expectation upon which
the said plan and reorganization was finally adopted, that the pecu-
liar value of the property of the New York City and Northern Rail-
way Company, together with its commanding position for terminal
purposes for the city of New York, was such that it was reasonable
to expect that, taking into consideration the growing commerce and
constantly increasing population of the city, its property and such
commanding position would, within the near future, make it of great
value to roads seeking entrance to the city of New York in compe-
tition with the lines now operated by the New York Central and
Hudson River Railroad Company, and that such constantly increasing
traffic and population would ultimately make valuable all the secu-
rities and stock provided for in the plan of reorganization, and that,
therefore, said plan and reorganization was adopted so as to save to
the then existing stockholders the equities and values represented
by their stock. And defendants allege that about the time when the
conspiracy and practices were devised to absorb the said defendant
railway by the New York Central and Hudson River Railroad Com-
pany, such expectations were rapidly being realized in the increasing
values of such property of the defendant.
VI. These defendants further show that heretofore, and through
and immediately upon and after the reorganization of the defendant
railway company about the year i&S7, the New York Loan and
Improvement Company, one of the defendants in this action, acquired
and became the owners of a large amount of the said second-mort-
gage bonds, and of the preferred and common stock of the present
corporation. That ever since the formation and organization of the
present corporation, and continuously thereafter, and until after the
last annual meeting of the said New York and Northern Railway
Company in October, iS9%, and thereafter, the said Loan and Improve-
554 Volume 5.
6399. CORPORATIONS. 6399.
ment Company owned, or controlled a majority of the second-mortgage
bonds and of the preferred and common stock of the said defendant
railroad company. That at the annual meeting of the stockholders
of said defendant railway company held in October, 1888, and at
every subsequent annual meeting of the said stockholders, the said
Loan and Improvement Company, by its ownership of a majority of
the common and preferred stock of the said defendant railway com-
pany, controlled absolutely the said railway corporation, and by
means of said control elected directors and officers of said defendant
railway company who represented the interests of it, the said Loan
and Improvement Company.
That at the annual meeting of the stockholders of the defendant
railway company held in October, i892, the following persons were
elected directors: (Here were listed names of directors.)
That of the said directors Messrs. Barney, Belden, Billings, Dimock
and Whitney were directors of the said Loan and Improvement Com-
pany; and of the other directors all except Messrs. Coppell, Hayes
and Mertens were stockholders of and interested in the said Loan
and Improvement Company, and this defendant further shows that the
said board of directors (acting under the control and direction of
the said Loan and Improvement Company, and well knowing that in
the event of a failure to pay the coupons of the said second-mort-
gage bonds, which would mature after the first day of December, \W1,
the said Loan and Improvement Company would control the foreclosure
of the mortgage securing the same, and that under a sale by reason of
such foreclosure they could acquire title to all of the said mortgaged
premises for the benefit of themselves, and to the exclusion of the
minority holders of the preferred and common stock) failed and
neglected to apply the net earnings of the said railway in accordance
with the provisions and agreements contained in the said mortgage.
And these defendants further allege that instead of using the
moneys earned during the years iS91 and i892 for the purposes of
paying the coupons which accrued, and default on the payment of
which is sought to justify the proceedings herein, the board of di-
rectors of the said railway company, for the purpose of furthering the
sale of said property in their own interest as herein set forth, and to
enable the said property to be absorbed and acquired by some other
railroad corporation, failed to apply the said money for such pur-
poses, but applied the same for unnecessary betterments and im-
provements on the road, so as to increase its value for such purposes
and to the detriment of these defendants, and others similarly situated
with them.
And these defendants further show that the gross earnings of the
said defendant railway company amounted to the following sums for
the following fiscal years, ending on the thirtieth day of June of
each year specified, excepting for the years i&89 and i890, when the
said fiscal years ended on the thirtieth day of September, that is to
say : (Here were enumerated the earnings. ) x
1. Enumeration of earning! referred to June jo, ifyr 483,326 oo (9 mos.)
in the text was as follows: June jo, 189* 521.216 80
"Septi'mbrr jo, l8<?9.$567,2r2 62
September 30, l8<?o. . 536,76933 Total $2,108,67475"
555 Volume 5.
6399. CORPORATIONS. 6399.
That the fixed charges by way of interest on the first mortgage
during the said four years amounted to 240,000. That a large part
of the said remaining earnings have, by the acts of the board of di-
rectors of the said defendant railway company, been applied to
purposes other than the operating expenses, taxes and necessary bet-
terments; and that the application of such earnings to such other
purposes was made by direction of the said board for the purpose of
increasing the value of the security held for the second-mortgage
bonds and in disregard of the rights and interests of the said minority
stockholders, and in violation of the terms and provisions contained
in the said second mortgage.
And these defendants allege that if the said directors had complied
with the terms and provisions of the said mortgage the said earnings
would have been amply sufficient to pay the said coupon maturing on
the first day of June, \W2, amounting to $64,000, and there would at
present be no defaulted coupon under which a foreclosure of the said
property could be had.
And this defendant further alleges and charges that the said mis-
application of the earnings of the company was made with the object
and intent of bringing about such default in order that the said hold-
ers of the majority of the second-mortgage bonds and of the preferred
stock and of the common stock, would, by means of foreclosure, de-
stroy the interests of the minority stockholders and thus reorganize
the said corporation and its property in such manner as to secure for
themselves the entire advantage and benefit thereof.
VII. And for another and further defense to the complaint herein,
these defendants show to the court as follows:
Defense No. III.
They repeat all the allegations contained in the defense marked /
and //, and further show that on or about the twenty-eighth day of
January, \W3, the said New York Loan and Improvement Company,
which company was not then actively engaged in the prosecution of
its business and the alleged objects of its incorporation, held and
had in its corporate name the majority of the said second-mortgage
bonds and of the preferred and common stock of the defendant rail-
way company, and that said Loan and Improvement Company had no
other function except as holder or custodian of said securities; that
said Loan and Improvement Company, as is hereinbefore alleged, was
managed by essentially the same persons who were the directors of
and managed the defendant railway company; that these said per-
sons, acting in their own behalf, and for the Loan and Improvement
Company, entered into negotiations for the sale of, and sold to the firm
of Drexel, Morgan <5r Co., bankers, doing business in the city of New
York, or to J. Pierpont Morgan, a member of said firm, the said
securities, and promised and agreed to transfer to said Morgan, or to
such railway corporation as he might designate, the control and
management of said defendant railway company and of its railway
and property.
That said Morgan, being then owner and holder of said securities,
and being also a director of ih&New York Central and Hudson River
556 Volume 5.
6399. CORPORATIONS. 6399.
Railroad, entered into negotiations with the New York Central and
Hudson River Railroad Company, as is herein shown, a rival, parallel
and competing railroad to the defendant railroad company, and did,
on or about the eighteenth day of March, \W3, sell to said-Mw York
Central and Hudson River Railroad Company, or its agents or repre-
sentatives, the said securities (being a majority of the said second-
mortgage bonds and of the preferred and common stock) and said
control and management of the defendant railway company, and of
its railway and property, with the understanding that said Morgan
should procure the resignation of the old board of directors and its
officers or some of them, so as to enable the said New York Central
and Hudson River Railroad Company to control the board of directors
of said defendant railway company, and to manage and operate in
its own interest the said railway and property, with a view to its
subsequent lease or amalgamation in some form.
That the New York Central and Hudson River Railroad Company is
a corporation organized and existing under the laws of the state of
New York, and subject to all of the laws thereof, and is a parallel and
competing road with the said defendant railway, the New York and
Northern Railway Company. That the road commonly known as the
Harlem Railroad, extending from the city of New York, through
Brewsters to Chatham Four Corners, and the railroad known as the
Hudson River Railroad, extending from the city of New York through
Yonkers to the city of Albany, are parts and parcel of the said New
York Central and Hudson River Railroad system. That the said
New York Central and Hudson River Railroad Company and the NHV
York and New Haven Railroad Company (which is operated over the
lines of the New York Central and Hudson River Railroad system in
the city of New York), andtheAVw York and Northern Railway Com-
pany, are the only steam railroads which have entrances into, by rail
and terminal properties within, the limits of the city of Neiv York.
That the New York and Northern Railway Company intersects the
Harlem Railroad at Brewsters, and there connects with the New York
and New England Railroad, and that it also intersects, by means of
its said branch, the Hudson River Railroads*. Yonkers; and that the
said railroads, in respect of both passengers and freight, are parallel
and competing roads.
And these defendants further show that thereupon, having acquired
said securities, the said New York Central and Hudson River Railroad
Company, and the officers and directors thereof, began openly agitating
and promoting a lease of the property, franchises and privileges of
the said New York and Northern Railway Company to the New York
Central and Hudson River Railroad Company, and, by the exercise
of its power and control over the board of directors of the defendant
railway company, undertook and attempted to transfer, by means of
a lease, the entire property of the New York and Northern Railway
Company to the said New York Central and Hudson River Railroad
Company. That by the terms of the proposed lease it was agreed that
the said New York Central and Hudson River Railroad Company should
forever control and operate, possess and enjoy, the entire property
of the said New York and Northern Railway Company, and that in
557 Volume 5.
6399. CORPORATIONS. 6399.
consideration thereof, the said New York Central and Hudson River
Railroad Company should only either directly pay or guarantee the
payment of the interest of a certain limited amount of bonds of the
said New York and Northern Railway Company; but that no provision
was made in the said lease, or intended to be made, respecting either
the said preferred or common stock, so that the making of the said
lease would have effectually and completely destroyed the value
thereof.
And these defendants further show that on the nineteenth day of April,
i893, a meeting of the stockholders of the New York Central and Hudson
River Railroad Company was held at the city of Albany, and that the
avowed object of the said meeting was to approve and authorize the
acquirement by purchase of a controlling interest in the stock and
bonds of the New York and Northern Railway Company \ and authorize
the making of a lease with that company, or a company which was to
be organized in its stead, of its railroad and property, and to approve
and authorize the guarantee under such lease of the principal and
interest of five million ($5,000,000) dollars in Jtfo 100-year gold bonds
of the lessor company.
And these defendants further show that they, and other stock-
holders of the New York and Northern Railway Company, openly
opposed the proposed lease to the New York Central and Hudson
River Railroad Company, for the reason that such lease would be
destructive of their interest, and because it was a direct violation of
the law of this state, which prohibits the consolidation or leasing,
one to another, of parallel and competing railroads.
These defendants further show that thereupon the said New York
Central and Hudson River Railroad Company did not carry into effect
the proposed lease of the New York and Northern Railway property,
but instead thereof, and before the commencement of this action,
with the purpose and intent of obtaining the exclusive and permanent
control of the railway property of the said defendant railway com-
pany, the said New York Central and Hudson River Railroad Company,
in order still further to acquire and hold a controlling interest of the
second-mortgage bonds so as to accomplish its unlawful and improper
purpose through a foreclosure, entered into a certain agreement with
the then holders of the said second-mortgage bonds of the said
defendant railway company, which bonds it had not theretofore
acquired (whose names are unknown to these defendants), whereby
the said New York Central and Hudson River Railroad Company agreed
to buy, and the other parties to said agreement agreed to sell, the
said second-mortgage bonds of the New York and Northern Railway
Company to an amount in the aggregate exceeding one million one hun-
dred thousand dollars ($1,100, 000), for the nominal sum of eight hun-
dred dollars ($800) per one thousand dollars ($.7,000) of the principal
of the bonds so sold, being the same rate paid by it or for its account
for such of said bonds as it had theretofore acquired.
The New York Central and Hudson River Railroad Company agreed
upon its part that it would make payment for the bonds so purchased
in the bonds of a company which, at the time of their issue, should
be the owner of the railroad and property of the said New York and
558 Volume 5.
6399. CORPORATIONS. 6399.
Northern Railway Company, and that the total amount of bonds so to be
issued on the said property should be six million two hundred thousand
dollars ($6,200,000), bearing interest at the rate of four per cent,
per annum, payable one hundred years from the date thereof, secured
by the property now covered by the said second mortgage of October
1, i&7, and that the principal and interest of the said new bonds
should be guaranteed by the said New York Central and Hudson
River Railroad Company, and should be in form approved by the said
firm of Drexel, Morgan & Co.
And this defendant charges that immediately after the said agree-
ment was made, the said Drexel, Morgan & Co. and the said J. Pier-
pont Morgan agreed that they would use the bonds so sold in such
manner as might be directed by the said New York Central and
Hudson River Railroad Company.
That the said New York Central and Hudson River Railroad Com-
pany thereupon, in pursuance of their design and object to obtain the
control and ownership of the property of the Neiv York and Northern
Railway Company, and in violation of the statute of this state which
forbids the consolidation, merging or leasing, one to the other, of
parallel and competing lines, and in the exercise of a power and an
expenditure ultra vires of said New York Central and Hudson River
Railroad Company, exercised the ownership and control which it had
acquired under the said agreement of July IJ^, i8#J, and itself directed
or instructed the said firm of Drexel, Morgan & Co. to direct the
Farmers' Loan and Trust Company, as the trustee of the said second
mortgage, to institute proceedings for the foreclosure of the said
mortgage; that no consent of the railroad commissioners of this
state has been given to the consolidation of the said two companies,
or to the leasing of one to the other.
VIII. And these defendants further show that since the Neiv York
Central and Hudson River Railroad Company acquired the said securi-
ties and the control and management of the said property by con-
nivance, collusion and conspiracy with the former directors of the
defendant railway company, it placed in the management of the
defendant railway company its own officers and agents, to wit, one
E. V. W. Rossiter, the treasurer of the New York Central and Hudson
River Railroad Company, as treasurer of the defendant railway com-
pany, and one John Carstensen, the comptroller of said New York
Central and Hudson River Railroad Company, as auditor of the defend-
ant railway company, and in place and stead of some of the former
directors of the defendant railway company, who had resigned, other
directors in the interest of and under the dominion of the said New York
Central and Hudson River Railroad Company were elected, so that
efforts, in good faith, on the part of the management of the defend-
ant railway company to meet its obligations, could not be made, and
the defaults theretofore nominally made could not be repaired.
And these defendants further show that they, and the said other
minority stockholders whom they represent, and in whose behalf
they act, purchase and hold their preferred stock, relying upon the
great and appreciating value of the said New York and Northern
Railway Company's property, by reason of its independent entrance
559 Volume 5.
6399. CORPORATIONS. 6399.
into the city of New York and of the important and valuable territory
which it owns and serves. That he and they also relied, and had the
right to rely, on the provision of law which protected him and them,
as such stockholders, from the unlawful attempt of parallel and com-
peting railroads to acquire or control the said property.
IX. And for another and further defense to the complaint herein,
these defendants show to the court as follows:
Defense No. IV.
They repeat all the allegations contained in the previous defenses
herein, and further show, that the said New York Central and Hudson
River Railroad Company in so acquiring the majority of the said
second-mortgage bonds of the defendant railway company, for the
said purpose of owning and controlling the railway and property of
the said defendant railway company, acted ultra vires of it, the said
New York Central and Hudson River Railroad Company, that in
acquiring said bonds for said purpose at a great discount from the
real value thereof, after it had acquired the majority of the said pre-
ferred and common stock, it acted in breach of trust to the minority
members of said defendant railway company, who became and were
associates and partners with it. the said New York Central and Hud-
son River Railroad Company, in the said business of owning and
operating the said railway, and in fraud of their rights; and that the
said New York Central and Hudson River Railroad Company may not,
in equity, so use and employ its possession and ownership of said
bonds for the said avowed purpose of foreclosing the said second
mortgage, and depriving the said defendants and the other minority
stockholders of their interest in the said railroad and property of the
said defendant railway company; but these defendants show that in
so acquiring said second-mortgage bonds under their real value and
for said illegal and void purposes, the said New York Central and
Hudson River Railroad Company acquired and holds the said bonds in
trust for the said defendant railway company and all of the stock-
holders thereof, and is not entitled to a foreclosure, but is entitled
only to receive, upon a dissolution of said defendant railway com-
pany, and upon an accounting, the sums actually paid by it, the said
New York Central and Hudson River Railroad Company for said bonds,
and no more.
And these defendants further show that the Farmers' Loan and
Trust Company, as trustee, the plaintiff herein, has no interest in the
said action except as trustee under the said second mortgage, and
as representing the holders of the said second-mortgage bonds, which
these defendants have shown and allege are all, or nearly all, owned
and held by the said New York Central and Hudson River Railroad
Company, and that the Farmers' Loan and Trust Company has com-
menced and is prosecuting this action only at the request of, in
behalf of and as representing said New York Central and Hudson River
Railroad Company.
And these defendants further allege that the said act and agree-
ments between the New York Central and Hudson River Railroad
Company and said former owners of the said second-mortgage bonds,
560 Volume 5.
6399. CORPORATIONS. 6399.
and the said firm of Drexel, Morgan & Co. and said /. Pierpont Mor-
gan, are forbidden by law and are void; that no title or right was
acquired by the New York Central and Hudson River Railroad Com-
pany in and to the said bonds, or any of them; that the direction
given to the Farmers' Loan and Trust Company to foreclose the said
mortgage, if any such was given, was a direction intended to accom-
plish an illegal purpose, and is therefore void and of^no effect, and
that all proceedings instituted in pursuance of the said notice and on
behalf of the said second-mortgage bonds are contrary to law and
cannot confer upon the trustee of the mortgage the right to relief
which it prays for in this action.
Defense No. V.
X. And for another and further affirmative defense to said com-
plaint these defendants repeat and reaffirm the allegations herein-
before contained, and further allege and show to the court that the
affairs and business of the said New York and Northern Railroad
Company have been managed for a long time, and since before any
default in the payment of interest on the bonds in question, in the
interest and for the benefit and at the dictation of the defendant the
New York Loan and Improvement Company, and since about April,
\WS, by and in the interest of the New York Central and Hudson
River Railroad Company. And that for a long time the said New York
and Northern Railway Company has been managed without any regard
for the interests of its stockholders, but by corporations and persons
whose interests, by reason of their large ownership of the mortgage
liens, have been antagonistic to the minority stockholders of said
defendant railway company. That since some time prior to April,
iS93, the managers of said New York and Northern Railway Company
have not only been indifferent to the rights of its stockholders, but
have had a direct interest opposed to said stockholders and have
zealously and persistently sought to destroy the value of the stock
of said company. That its officers have not only failed to take any
measures to save its property and defend said company against
annihilation, but have been the willing and earnest promoters of the
plans of the New York Central and Hudson River Railroad Company to
absorb its property without compensation to its stockholders, and
have, moreover, resented and denounced the efforts of these defend-
ants to preserve and protect the property and existence of said New
York and Northern Railway Company. That since the said New York
Central and Hudson River Railroad Company obtained, as aforesaid,
the control and domination over said New York and Northern Rail-
way Company, there has been no officer, manager or director of said
New York and Northern Railway Company who has taken any interest
in its protection or any step for its defense; but its affairs have been
administered with the sole object and purpose of facilitating, as much
as possible, the plans of said Neiv York Central and Hudson River
Railroad Company, for the absorption of its property and termination,
as quickly as possible, of its existence as an active and rival railroad
corporation. That the two several plans for such absorption of its
property by the New York Central and Hudson River Railroad Corn-
's E. of F. P. 36. 561 Volume 5.
6399. CORPORATIONS. 6399.
pany have been hereinbefore set forth. That neither of said plans
provides for any compensation to the stockholders of the New York
and Northern Railway Company, but both of said plans were devised
and intended for the acquirement of said property without payment
or recognition of any kind whatever to any of said stockholders.
That by reason of the acts and control of said New York Central and
Hudson River Railroad Company the said New York and Northern Rail-
way Company became and is, as to its own protection, inert and power-
less. And these defendants show that irrespective of the foreclosure
sought herein the said corporation and its stockholders will be with-
out any adequate protection, provided the said company shall con-
tinue to be managed and dominated by the New York Central and
Hudson River Railroad Company. That the latter company is a rival
and competing line of railway, and parallel to said New York and
Northern Railway Company, both on the east and west, with its two
contiguous lines of railroad, to wit, the Hudson River and Harlem
divisions. That by reason of its adverse interests the said New York
Central and Hudson River Railroad Company, even if defeated in this
action in securing the property of said New York and Northern Rail-
way Company, would inevitably, as manager and in control of the
same, discriminate against the said New York and Northern Railway
Company, and manage it in such a way as to destroy it as an inde-
pendent line, and prevent it from successfully carrying on its business
and from performing its duty to the public. That such management
and control by a rival corporation owning a majority of the stock and
bonds in its own interests, and in hostility to the interest of the
said New York and Northern Railway Company, is unjust and inequi-
table, and is against public policy. That the property and franchises
of said New York and Northern Railway Company are of great and
constantly increasing value, and that the said railway, if properly and
prudently managed, is able to meet all its just obligations and to earn
a profit for its stockholders; but that such prudent and profitable
management is impossible unless the control of said company and its
property is taken out of the hands of the New York Central and Hud-
son River Railroad Company. And these defendants further say, that
they and their associates, minority stockholders, would be remedi-
less, and their property would be destroyed, unless the foreclosure
sought herein is enjoined and restrained, and the affairs and property
of said defendant corporation placed in the hands of a receiver wholly
independent from such control or influence, who shall manage and
administer the same equitably and justly, under the direction of this
court, for the benefit and protection of the stockholders, as well as
the security holders of the said New York and Northern Railway
Company.
Wherefore, these defendants demand that the complaint herein be
dismissed, with costs, and that they may have such other affirmative
and additional relief, or both, as the court may deem proper in the
premises and as may be just.
Simon Sterne,
Attorney for Defendant Alfred R. Pick.
Office and Post-office address,
56 Beaver Street, New York City, N. Y.
562 Volume 5.
6400. CORPORATIONS. 6400.
Holmes &* Adams,
Attorneys for Artemas H. Holmes,
one of the Defendants aforesaid,
15 Broad Street, New York.
( Verification. ) x
e. To Recover Subscription to Constituent Corporation.
PETITION OF AUTHORIZED AGENT OF CONSOLIDATED COMPANY.
Form No. 6400.
(Precedent in Armstrong v. Karshner, 47 Ohio St. 276.)*
[The State of Ohio, \ T ., n f ^ D ,
' > In the Court of Common Pleas.
Ross County, ss. \
John Karshner, plaintiff,
against \ Petition.
Milton Armstrong, defendant.] 3
The plaintiff, John Karshner, says: That on the 26th day of April,
A. D. 1 8 77, The Cincinnati and Fayetteville Railroad Company was duly
incorporated as a corporation under the laws of Ohio, for the purpose
of building and operating a railroad from the city of Cincinnati, in
the county of Hamilton, through the counties of Hamilton, Clermont
and Broiun, to the village of Fayetteville, in said last named county
all in this state.
That the capital stock of said company was $120,000, divided
into two thousand four hundred shares of $50 each ; and that, shortly
after the incorporation of said company, the amount of such capital
stock required by statute for the purpose, having been duly sub-
scribed and paid, said company duly organized by electing according
to law a board of directors, who duly qualified as such.
That on or about the 31st day of May, A. D. i87, said company,
a large amount of its capital stock, to wit. more than twenty per
centum of its authorized capital stock in bona fide subscriptions
having been subscribed, and a large amount of money, to wit, more
than ten per centum of its authorized capital having been expended
by it in the construction of its said railroad, duly and legally changed
the eastern terminus of said railroad, and extended the line of the
same from said village of Fayettei'ille eastward through the counties
of Brown, Clinton, Highland, Ross, Hocking and Athens, to the town
of Nelsonville in said last named county all in this state.
That, afterwards, on the 9th day of March, A. D. \&80, the name of
said company was, by proceedings had for the purpose in the court
1. See the title VERIFICATIONS. the circuit court and the supreme court.
2. Subsequent Pleading* in this Case. 3. The words in [ ] are not in the re-
A general demurrer to this petition was port of the case, but have been added
overruled and defendant filed an an- to render the form complete.
swer thereto, which is set out in full in For the formal parti of complaints and
the reported case. To the answer petitions, generally, consult the title
plaintiff demurred, which demurrer COMPLAINTS, vol. 4, p. 1019; of bills in
was sustained in the court of common equity, generally, consult the title BILLS
pleas and this ruling affirmed both in IN EQUITY, vol. 3, p. 417.
563 Volume 5.
6400. CORPORA TIONS. 6400.
of Common Pleas within* and for said county of Brown, duly and
legally changed to The Cincinnati, Fayetteville, Hillsboro and Hunting-
ton Railway Company, and that, afterwards, on the 7th day of March,
A. D. i8<7, the name of said company was, by like proceedings in
said court of Common Pleas within and for said county of Brown,
again duly and legally changed from The Cincinnati, Fayettevillc,
Hillsboro and Huntington Railway Company to the Cincinnati, Hocking
Valley and Huntington Railway Company, which said last name it still
retains.
That, on or about the Hth day of October, A. D. iS80, the Cincin-
nati, Fayetteville, Hillsboro and Huntington Railway Company made and
entered into a contract in writing with one Henry T. Niles under the
firm name and style of Henry T. Niles and Company, for the building
and completing of said company's line of railroad, and the said
Henry T. Niles and Company, under said contract, and certain con-
tracts supplemental thereto, made and entered into between said firm
and said railway company after its name had been changed, as afore-
said, to the Cincinnati, Hocking Valley and Huntington Railway Com-
pany, to wit: on the 5th day of September, A. D. iS81, and the 19th day
of December, A. D. i&81, respectively, agreed to build and complete
the line of said company's railroad from its junction with the Cin-
cinnati and Eastern Railroad, in said county of Clermont, to said town
of Nelsonville, in said county of Athens, in consideration of which
among other things said railway company authorized and empowered
said Henry T, Niles and Company to procure stock subscriptions and
donations to and for said company to the amount of 5,000 per mile
for all that part of its said line of railroad between the Scioto river
in said county of Ross and said town of Nelsonville, in said county of
Athens, and to collect, hold, have and use the same as their own, in
and about the construction of said railroad.
That on the day of October, A. D. i881, the defendant, Mil-
ton Armstrong, for the purpose of aiding in the construction of said
railroad, and in consideration of the advantages and benefits to ac-
crue to him therefrom, and especially from the building of that part
of said railroad from the Scioto Valley Railroad in said county of
Ross to a point at or near the village of Adelphi, in said county, as
well as in consideration of like subscriptions and agreements by
others for said purpose, became a subscriber to the capital stock of
the Cincinnati, Hocking Valley and Huntington Railway Company by
executing and delivering to said company an agreement in writing in
the words and figures following, which was duly accepted by it, to
wit: (Here was set out verbatim copy of agreement. ) x
1. The agreement referred to in the of said company; but it is expressly
text was substantially as follows: "We, provided as follows: that no part of
the undersigned, agree to pay the num- said subscription shall be due until a
ber of shares annexed to our respective railroad track shall be laid ready for
names, of fifty dollars each, to the capi- the running of cars from some point on
tal stock of the Cincinnati, Hocking Val- the Scioto Valley Railroad to a point at
ley and Huntington Railway Company, or near Adelphi, in Ross county, and
and we hereby bind ourselves, our when said railroad track is so laid, we,
heirs, executors or administrators to the undersigned, mutually agree that
pay the same to the authorized agent we will each, on demand, pay the
564 Volume 5.
6400. CORPORA TIONS. 6400.
That said defendant thereby agreed to take ten shares of the capi-
tal stock of the Cincinnati, Hocking Valley and Huntington Railway
Company, each share being of the par value of $J#, and agreed to pay
therefor the sum of $500 to the authorized agent of said company on
demand, so soon as a railroad track should be laid ready for the run-
ning of cars from some point on said Scioto Valley Rail road to a point
at or near the village of Adelphi, in said county of Ross, provided said
railroad should be built north of said village of Adelphi.
That, afterwards, on or about the 20th day of October, i&82, the
said Henry T. Niles and Company, who had in compliance with the
terms of their said contracts with said railway company, and in con-
sideration of said subscription of said defendant, and induced thereby,
partly built a portion of the railroad of said company, including a part
thereof between the village of Kingston, in said county of Ross, situate
on the said Scioto Valley Railroad, and said village of Adelphi, and were
still engaged in the construction of the same, made and entered into
a contract in writing with the plaintiff, which was duly approved by
the Cincinnati, Hocking Valley and Huntington Railway Company, under
and by virtue of which he, the said plaintiff, agreed to build and com-
plete that portion of the railroad of said company from said village
of Kingston, at and on said Scioto Valley Railroad to said village of
Adelphi, on the west side of the Circlei'ille and Adelphi turnpike, and,
also, agreed conditionally, to build that portion of said railroad of
said company between said last named point and Daniel Davis 's, at
or near the mouth of Big Pine creek, in said county of Hocking, upon
certain terms and conditions in said contract set forth, in considera-
tion of which among other things, the said Henry T. Niles and Com-
pany, with the approval and assent of said railroad company duly
given, agreed to assign and transfer, and did duly assign and transfer
to him, the said plaintiff, all stock subscriptions and subscriptions for
donations held and acquired by them under their said contracts with
said railway company, including said subscription of said defendant,
from the city of Chillicothe, in said county of Ross to said Daniel
Davis' s.
That he, the said plaintiff, under his said contract, which he was
induced to make by said subscription of said defendant, and like sub-
scriptions of other persons, built that part of said railroad between
said village of Kingston, at and on said Scioto Valley Railroad, and
said village of Adelphi; and that the last rail on that part of said rail-
road and of the track thereof between said points was laid on the 28th
day of September, \%85, and said part of said railroad was then ready
for the running of cars thereon; and that since the 21st day of De-
cember, i885, he, the said plaintiff, has been operating said part of
said railroad by running trains for carrying both freight and passen-
gers over the same between said village of Kingston, at said Scioto
Valley Railroad, and said village of Adelphi.
amount set opposite our respective the within stock subscriptions are bind-
names, to such authorized agent of said ing providing the road is built on the
company, in full payment for such north of Adtlphi, otherwise they are
shares of capital stock. * * * It is dis- void. * * *."
tinctly agreed and understood that all
565 Volume 5.
640 1 . CORPORA TIONS. 640 1 .
That said railroad was built north of said village of Adelphi, as men-
tioned in, and required by the subscription agreement of said defend-
ant, and all conditions in said subscription agreement have been
fully performed by said railway company, and by him, the said
plaintiff.
That the full amount of said subscription of said defendant became
and was due and payable to the plaintiff, from him, when said rail-
road track was laid ready for the running of cars thereon, from said
village of Kingston, at and upon said Scioto Valley Railroad, to said
village of Adelphi, to wit, on said 28th day of September, i8<&>, but no
part of said sum has been paid by said defendant, although the plain-
tiff at or about that time demanded payment of the same; and he,
the said defendant, has since been requested by the plaintiff to pay
the same.
That said railway company and the plaintiff were, at said time, and
have been at all times since, ready and willing, and still are ready
and willing, to issue and deliver to said defendant, upon the payment
of said subscription, certificates of stock in said company, for the
number of shares so subscribed for by said defendant, and have re-
peatedly offered to deliver such certificates to him.
Wherefore the plaintiff asks judgment against the defendant for
the sum of 500, with interest thereon from the 28th day of Septem-
ber, iS85.
John Karshner.
( Verification. ) x
2. Proceedings against. 2
1. Consult the title VERIFICATIONS. -way Company hereinabove complained
2. Proceedings by and against corpora- of."
tions, generally, see supra, note i, An allegation that certain railroad
p. 527. companies were by law authorized to
Sufficiency of Averment of Consolida- consolidate and did consolidate and
tion. In Zealy v. Birmingham R., become one corporation is sufficient,
etc., Co., 99 Ala. 579, the allegations without alleging the various steps of
as to consolidation of the defendant such consolidation. Collins v. Chicago,
corporation were held to be sufficient, etc., R. Co., 14 Wis. 492.
The allegations were as follows: "The A complaint alleging that defendant
plaintiff claims of the defendant, a cor- " purchased and had assigned to itself
poration organized under the laws of the railroad, franchises, immunities,
Alabama, by the consolidation on, to stock, bonds, and all property and ap-
wit, the fifth day of May, 1890, with purtenances " of another company,
the Birmingham Union Rail-way Com- shows merely a succession, and not a
pany, the Birmingham and Bessemer consolidation such as would render
Railroad Company, the Easley Railway defendant responsible for a tort previ-
and the Birmingham and Electric Com- ously committed by its vendor. Pen-
pany, private corporations existing nison v. Chicago, etc., R. Co., 93 Wis.
under the laws of the state of Alabama, 344.
for (Here followed the statement of per- For agreed statement of facts in an ac-
sonal injuries inflicted, upon which the tion against a consolidated corporation
action was based, the count concluding as see John Hancock Mut. L. Ins. Co. v.
follows:) And the plaintiff avers that Worcester, etc., R. Co., 149 Mass. 214;
by reason of said consolidation the de- Compton v. Wabash, etc., R. Co., 45
fendant is liable to her in damages for Ohio St. 593. For agreed statements
the injuries caused by the wrongful of facts, generally, consult the title
acts of the said Birmingham Union Rail- SUBMITTED AND AGREED CASES.
5<3G Volume 5.
640 1 . CORPORA TIONS. 640 1 .
a. For Injunction. 1
(1) To ENJOIN OPERATION OF PROPOSED LEASE.
DEMURRER TO BILL.
Form No. 6401.
(Precedent in Gyger v. Philadelphia, etc., R. Co., 136 Pa. St. 99.)*
[Jesse Gyger "1 In the Court of Common Pleas, No. #,
against 1 of the City and County of Philadel-
The Philadelphia City | phia. December Term, iS#3. No.
Passenger Railway Company. J 332.
The demurrer of the Philadelphia City Passenger Railway Company
to the bill of complaint of Jesse Gyger, complainant:
This defendant by protestation, not confessing or acknowledging all
or any of the matters and things in the said complainant's bill to be
true in such manner and form as the same are therein set forth and
alleged, doth demur to the whole bill, and for cause of demurrer
showeth,J 3
i. That it is not a railroad corporation within 4, article XVII,
of the constitution of this state, as appears from the facts stated in
said bill.
a. That if it were a railroad corporation within said section of said
article, it does not appear from said bill that the same has ever been
accepted by this defendant.
3. That if it is a railroad corporation within said section of said
article, the lines of the railway companies, defendants herein, as
appear by the charters thereof cited in said bill, do not constitute
parallel or competing lines, inasmuch as the same are laid and oper-
ated on different streets within the limits of a city and have different
termini; street mathematical parallelism, nor merely eastern and
western endings, not constituting prohibited lines, within the mean-
ing of the said section of said article, as in said bill is erroneously
averred.
4. That the said bill contains no matter of equity whereon this
court can ground a decree, or give complainant any relief as against
the defendant.
[Wherefore these defendants demand judgment of this honorable
court whether they shall be compelled to make any further answer
1. Injunction at the suit of a single one company to another, for a period f
stockholder may issue to restrain the nine hundred and ninety-nine years,
carrying out of a consolidation agree- of the franchise, tracks, cars, and all
ment which has been carried through property of the lessor, and for an in-
without due authority, the object of junction. Upon the demurrer filed,
which was to prevent lawful competi- assigning the reasons given in the text,
lion. Elkins v. Camden, etc.. R. Co., the court sustained the same and dis-
36 N. J. Eq. 5. missed the plaintiff's bill, which ruling
For forms connected with injunction was affirmed on appeal,
proceedings, generally, consult the title For formal parts of demurrers, gener-
INJUNCTIONS. ally, consult the title DEMURRERS.
2. The bill in equity in this case was 3. The words in [ ] do not appear in
against two railway companies seeking the reported case, but have been added
to declare illegal a proposed lease by to complete the form.
567 Volume 5.
Supplemental Information.
6402. CORPORATIONS. 6402.
to the said bill or any of 'the matters or things therein contained,
and pray to be hence dismissed with their reasonable costs in their
behalf sustained.
Homer Merritt, Solicitor for Defendant.] 1
[{Verification.}] 2
(2) To RESTRAIN OPERATION OF AGREEMENT CREATING MONOPOLY.
(a) Attorney-General's Information.
Form No. 6402.*
In Chancery of New Jersey.
Between John P. Stockton, Attorney- '
General, informant,
and
" The Central Railroad Company of
New Jersey, the Port Reading
Railroad Company, and the Phila-
delphia and Reading Railroad
Company, defendants.
To his Honor Alexander T. McGill, Chancellor of the State of New
Jersey-.
Informing showeth unto your honor your informant, John P.
Stockton, Attorney-General of the state of New Jersey, on behalf of
the said state.* That on or about the thirty-first day of May, \W2,
your informant exhibited his information in this honorable court
against the Central Railroad Company of New Jersey, \htPort Reading
Railroad Company, and \}^\Q. Philadelphia and Reading Railroad Company,
hereinafter named as defendants, thereby stating: (Here was set out,
omitting the formal parts, the original information^
And your informant further shows that the said the Central Rail-
road Company of New Jersey, the Philadelphia and Reading Railroad
Company and the Port Reading Railroad Company appeared and put in
separate answers to said information admitting many of the allega-
tions of said information, but denying that the lease made by the
Central Railroad Company of New Jersey to the Port Reading Railroad
Company was in reality made to the Philadelphia and Reading Railroad
Company, or for the objects and purposes in said information alleged;
1. The words in [ ] do not appear in create a monopoly in the anthracite
the reported case, but have been added coal trade within the state by stifling
to complete the form. competition between the contracting
2. Consult the title VERIFICATIONS. corporations. An injunction was
3. This supplemental information is granted directing the defendants to
copied from the record in Stockton v. refrain from further performing or
Central R. Co., 50 N. J. Eq. 59, 489. carrying into effect the lease and tri-
The object of the information was to partite agreement.
have a certain indenture of lease, made For other informations see infra, this
between the Central Company of New title, Complaint, Petition, Suggestion or
Jersey and the Port Reading Company, Information.
and also certain other agreements, 4. The original information referred to
decreed to be ultra vires and void as in the text is set out infra, Form
against public policy, and as tending to No. 6403.
568 Volume 5.
6402. CORPORATIONS. 6402.
and the said defendant corporations further insisted that even if the
said lease was to be deemed a lease made to the Philadelphia and
Reading Railroad Company, that such lease was authorized, and that
the act of the legislature of this state, approved May 2, 1885, entitled
" An Act respecting the leasing of railroads," was unconstitutional
and void; and the said defendants also denied having entered into
any combination whatever to monopolize the business of mining and
selling anthracite coal, and they further denied that, they were the
owners of any coal lands, or that they had any power to increase the
selling price of coal or that they had entered into any combinations
or agreement to prevent competition in the trade in coal.
And your informant further informs your honor that said answers
have been replied to, and that witnesses have been examined on the
part of your informant, but the proofs have not yet been closed, as
by the said information and proceedings now remaining as of record
in this court will more fully appear.
And your informant further informs your honor, by way of supple-
ment, that on the thirty-first day of May last, being the day on which
said information was filed, your honor made an order in said cause as
follows: (Here was set out order to show cause why injunction should not
issue.) 1
And your informant further informs your honor, that on the hear-
ing directed by said order, the Central Railroad Company of New
Jersey, the Port Reading Railroad Company, and the Philadelphia and
Reading Railroad Company, appeared by their respective counsel, hav-
ing answered the information in manner aforesaid, and that argu-
ment was had concerning the matters referred to in said order, and
that on the twenty-ninth day of August, i8P#, your honor, after having
considered the pleading, proofs and arguments, made a further order
or decree, as follows: (Here was set out the order granting
injunction.^
And your informant further informs your honor, that upon the
making of the said last mentioned order and injunction, issued and
duly served upon the proper officers of the said answering defend-
ants, which injunction was in the words following: (Here was set out
the injunction verbatim.)*
And your informant further informs your honor, that between the
said thirty-first day of May and the said tiventy-ninth day of August
last, the preliminary order made by this court was disobeyed by the
Philadelphia and Reading Railroad Company and the Central Railroad
Company, acting in combination and conjointly with each other,
which railroad corporations operated their railroads in the state of
New Jersey in such manner as to diminish competition among them
in the trade in anthracite coal and arbitrarily increased the price
thereof to the people of this state, as well the coal owned or con-
trolled by the Central Railroad Company as that owned or controlled
1. The order to show cause why in- in the text is set out in full infra, Form
junction should not issue referred to in No. 6405.
the text is set out in full infra, Form 3. The injunction referred to in the text
No. 6404. is set out in full infra, Form No. 6406.
8. The order for injunction referred to
569 Volume 5.
6402. CORPORATIONS. 6402.
by the Philadelphia and Reading Railroad Company, by raising the
price of egg coal, on or about the first day of July, iS92, at least ten
cents per ton, and by raising the price of stove coal, at the same
time, at least fifteen cents per ton ; and said corporations did in other
respects combine with each other to prevent competition in the pro-
duction, transportation and sale of such coal and to create a mo-
nopoly thereof.
And your informant further informs your honor, that on or about
the first day of September, \W2, the said the Philadelphia and Reading
Railroad Company and the Central Railroad Company, acting in com-
bination and conjointly with each other, and in disobedience of said
order made on the thirty- first day of May, i892, and of said order
made on the twenty-ninth day of August, i&92, and of the injunction
issuing thereon, operated their respective railroads in the state of
New Jersev in such manner as to diminish competition in the trade
in anthracite coal, and again arbitrarily rajsed the price of the
anthracite coat owned or controlled by the Philadelphia and
Reading Railroad Company and the Central Railroad Company, of the
sizes known as egg and stove, not less than twenty-fire ,zn\.s per ton,
and have arbitrarily maintained such increased prices ever since to the
people of this state, and about the same time the said railroad com-
panies, acting in concert as aforesaid, arbitrarily raised the price of
anthracite coal to the people of this state by raising the rate of
freight charged by them, and each of them, for the transportation
thereof from the mines to points on tide-water in this state adjacent
to New York, not less than ten cents, and have maintained such
increased rate of transportation ever since.
And your informant further informs your honor, that the dis-
obedience of the Central Railroad Company of New Jersey and of the
Philadelphia and Reading Railroad Company to the said orders has
been deliberate and wilful, and that the said corporations cannot
safely be trusted with the execution thereof, and that it is necessary
that a receiver should be appointed with such powers in relation to
the transportation of coal over said road as may be necessary to give
full effect to the orders heretofore made, and to such further order
and decree as may be deemed proper, and that the Philadelphia and
Reading Railroad Company and the Central Railroad Company should
be enjoined and restrained from continuing to maintain the aforesaid
advances made in the price of coal and for the transportation
thereof, and should be restrained from operating the road of the
Central Railroad Company of New Jersey, so far as such operation
relates to the transportation of coal thereover at said advanced prices
and rates.
To the end, therefore, that the said defendants may, if they can,
show why your informant should not have the relief hereby craved,
and may under their respective common and corporate seals, on the
oaths or affirmations of their respective presidents and secretaries,
answer the premises as fully as if the same were here again repeated,
and they particularly interrogated thereto, and that a receiver may be
appointed to take charge of the road of the Central Railroad Company
of New Jersey generally, with such powers in relation to the trans-
570 Volume <;.
6403. CORPORA TIONS. 6403.
portation of coal thereover as may be necessary to enforce obedience
to the commands of said orders and injunction, and of such further
decree as the court may make in the premises, and that your inform-
ant may in addition to the relief specifically prayed by him in the
original information, have such other or further relief in the premises
as the circumstances of his case may require, and to your honor shall
seem meet.
May it please your honor, the premises considered, to grant unto
your informant, not only the state's writ of injunction issuing out of
and under the seal of this honorable court, to be directed to the said
the Central Railroad Company of New Jersey and the Philadelphia and
Reading Railroad Company, enjoining and restraining them from
further continuing the aforesaid advances made in the price of coal
and for the transportation thereof, and enjoining and restraining the
Philadelphia and Reading Railroad Company, and the Central Railroad
Company of New Jersey, and each of them, from operating the road
of the Central Railroad Company of Neu> Jersey and its various
branches for the transportation of coal thereon at said advanced
prices and rates, and for so long a time as said corporations, or
either of them, continue to maintain such prices and rates or any
other arbitrary increase in the price of coal, or doing any act or
thing tending to prevent future or existing competition in the pro-
duction, transportation or sale of such coal, and enjoining and
restraining them further from doing the acts or things mentioned in
the prayer of the original information, but also the state's writ of
subpoena to be directed to the said the Central Railroad Company of
New Jersey, the Philadelphia and Reading Railroad Company and the
Port Reading Railroad Company, commanding them, and each of them,
at a certain day and under a certain penalty therein to be expressed,
to be and appear before your honor in this honorable court, then and
there to answer the premises, and to stand to, abide by and perform
such decree therein as to your honor shall seem meet.
John P. Stockton, Attorney-General.
( Verification. ) x
Form No. 6403.*
(Commencing as in Form No. 6402, and continuing down to *.)
i. That by an act of the legislature of the state of New Jersey and
a grant of the said state, approved February 26, 1847, Garret D. Wall
and others, his associates named in the same act and grant, were
ordained, constituted and declared to be a body corporate in fact
and in name by the name of the Somennlle and Easton Railroad Com-
pany, with a capital stock of twelve hundred thousand dollars, with
liberty to increase the same to two millions of dollars, to be divided
into shares at fifty dollars each, which shares were declared to be
personal property, and to be transferable as the corporation by their
by-laws might direct. That the persons named in the act were
appointed commissioners to receive subscriptions to the capital stock
1. Consult the title VERIFICATIONS. N. J. Eq. 59, 489; and is partly a copy
2. This information is basod upon the of the record in that case. See also
facts in Stockton v. Central R. Co., 50 supra, note 3, p. 568.
571 Volume 5.
6403. CORPORATIONS. 6403.
as directed therein, who executed the duty imposed upon them, and
the said capital stock was subscribed; and that the stockholders of
said corporation were convened, according to the provisions of the
charter and grant aforesaid, and elected the directors of said corpo-
ration, which were duly organized according to law, and accepted the
franchises bestowed upon it by said act and charter, and entered upon
the performance of its duties. That the capital stock of the said
corporation was all paid in, and that the said corporation entered
upon the performance of its duties, constructed the railroad author-
ized and prescribed by the said act and charter, and proceeded to
discharge its corporate functions.
That the powers conferred upon the said corporation by its said
charter were, among others, to lay out and construct a railroad, or
lateral roads {describing lines of road}, not exceeding one hundred f eet
in width, with as many sets of tracks as they might deem necessary;
and the power of eminent domain so conferred upon the said corpo-
ration for the purpose of taking such lands and waters as might be
necessary for the construction of said railroad, which the said corpo-
ration was unable to purchase from the owners thereof.
That the said corporation, among other things, was required by its
said charter to deposit in the office of the secretary of state a survey
of its route or routes, and thereafter it was enacted that it should be
lawful for the said corporation to enter upon, take possession of,
have, hold, use, occupy and acquire any such lands, and to erect
embankments, bridges, ferries, and all other works necessary to lay
rails, and to do all other things which should be suitable and neces-
sary for the completion or repair of said road or roads subject to
making such compensation to the owners of lands as were directed
in said charter; and in and by the said charter proper prescriptions
were made and enacted prescribing the method in which the said
corporation should exercise the power of eminent domain, delegated
to it by the said charter, and the particular proceedings which should
be taken by the said corporation for giving notice to the owners of
the lands, so to be taken, and procuring a proper and lawful valuation
of the lands so to be taken by the said corporation. That the presi-
dent and directors of the said corporation were empowered by the
tenth section of the said charter to (statement of powers granted}.*
That the president and directors were required to make dividends
within one year after the said railroad should have been completed,
and semiannually thereafter as they might deem prudent and proper.
By the thirteenth section of the said charter the said corporation were
authorized to (statement of powers given)?
1. The powers granted under the tenth in the text authorized the company "to
section of the charter referred to in the have and to hold real estate * * * to
text were "to construct or purchase erect and build thereon such houses
with the funds of the company and to * * * as they might deem expedi-
place on the said railroad all machines, ent, * * to erect, build and main-
* * * for the transportation * * * to tain * * * wharves, piers, bridges,
charge for the transportation " (enu- * * * which lands might be taken by
merating rates). the exercise of the power of eminent
2. The powers given under the thir- domain."
teenth section of said charter referred to
572 Volume 5.
6403. CORPORATIONS. 6403.
By the fifteenth section of the said act or charter the said corpora-
tion was empowered to {statement of powers given).*- And your
informant shows that no other power of alienating the said corporate
franchises granted to the said corporation was given to or conferred
upon the said corporation,- and that the said corporation had in fact
no other power of alienating its corporate franchises or property.
And for greater certainty your informant prays leave to refer to the
act entitled "An Act to incorporate the Somerville and Easton Rail-
road Company," approved February 26, 1847, which act is the legis-
lative act, grant or charter of the said corporation hereinbefore
substantially set forth.
2. And your informant further informs your honor, that by an act
of the legislature of the state of New Jersey, or grant or charter,
passed February 9, 1831, Isaac H. Williamson and his associates
named in the said act, grant or charter, were ordained, constituted
and declared to be a body corporate and politic, in fact and in name,
by the name of the Elizabethtou>n and Somerville Railroad Company,
with a capital stock of two hundred thousand dollars, with liberty to
increase the same to four hundred thousand dollars, to be divided into
shares of fifty dollars each, which should be deemed personal property,
to be transferred in such manner as the corporation by its by-laws
should direct, and that the said Williamson and his associates were
constituted commissioners to receive subscriptions for the capital
stock of said corporation, and to give notice for a meeting of the
stockholders thereof, when the subscription should be completed, for
the election of nine directors of said corporation. That the books of
subscription were opened in conformity to such authority by the said
commissioners, and the capital stock of said corporation was sub-
scribed, and the stockholders were duly called together in a legal
meeting and organized the said corporation by electing directors, who
thereafter elected the said corporate officers, and the corporation
thereby accepted the said charter and entered upon the discharge of
its corporate functions and duties, and became legally vested with the
corporate privileges, franchises and powers conferred upon it in and
by the said act, grant or charter. That the president and directors of
the said company were authorized and vested with all the rights and
pv.vers necessary and expedient to survey, lay out and construct a
railroad or lateral roads, from one or more suitable place or places in
the village of Somennlle to one or more place or places in Elizabeth-
toivn, passing as near as practicable Bound Brook, Plainfield, Scotch
Plains and Wtstfield, not exceeding sixty-six feet wide, with as many
sets of tracks and grades as they might deem necessary; and the
saiJ corporation was authorized at all times to enter upon all the
lands or water by its agents for the purpose of surveying and laying
out the road or roads of such railroad or lateral roads, and locating
the same, and to do and direct all necessary work and appendages
1. The powers given by the fifteenth sary to build, * * * and to secure the
ection of said act or charter referred to repayment thereof by bond and mort-
in the text authorized the corporation gage, or otherwise, of the said road,
" to borrow such sum or sums of money * at a rate of interest not exceed-
from time to time as might be neces- ing seven percent, per annum."
573 Volume 5.
6403. CORPORATIONS. 6403.
thereon, and that the route or routes of such road or roads or lateral
roads so determined upon they were required to deposit a survey
thereof in the office of the secretary of state; and thereafter were
authorized to enter upon, take possession of, hold and use such lands
for the purposes of the said act, charter or grant, subject to such
compensation as was provided in said charter to be made to the
owners of said lands, and for the payment of damages by reason of
the erection and construction of said road. That in and by the said
charter the corporation were vested with the power of taking such
lands as they might reasonably require for the purposes of the cor-
poration by the exercise of the power of eminent domain, and in and
by said charter particular directions were prescribed for the mode in
which the said corporation should exercise such power of eminent
domain; to give notice to the owners of lands to betaken by it, and
ascertain, and make due and lawful compensation therefor. That
the president and directors of the said corporation were empowered
to have constructed, or to purchase with the funds of the company,
and to place on the said railroad constructed by them, all machines,
engines, wagons, carriages or vehicles for the transportation of per-
sons or any species of property as they might deem reasonable or
expedient, provided that they should not charge more than (enume-
rating charges). And that the railroad or railroads with all their
appendages and the land over which the same should pass, and all its
works, improvements, carriages and other property whatsoever were
vested in the said company, their successors and assigns, during the
continuance of said act. That the president and directors of said
corporation were required, within one year after the railroad should
have been completed, to declare and make such dividends as they
might deem prudent and proper of the net profits thereof, and should
in like manner semiannually thereafter declare such dividends, and
pay the same to stockholders, as they might deem prudent and
proper.
By the thirteenth section of said act or charter the said corporation
was authorized to (statement of powers given).*-
3. And your informant further informs your honor, that by an act
of the legislature of the state of New Jersey (title and date of act) the
Somerville and Easton Railroad Company was authorized and empow-
ered to purchase the railroad from Somerville, in the county of Somer-
set, to the sound in the township of Elizabeth, then in the county of
Essex, constructed under and by virtue of the act entitled " An Act to
incorporate the Elizabeth and Somerville Railroad Company," passed
February 9, 1831; and was also authorized to pay for said road, in
part or in whole, in the stock of the Somerville and Easton Railroad
Company, and for that purpose the Somerville and Easton Railroad
Company was authorized to issue so much of its capital stock
authorized by the act of incorporation as should be required for that
purpose. That by the third section of said act it was enacted that
1. The powers conferred by the thir- and build thereon houses, * * * to
teenth section of the act of the charter maintain and to erect, build and main-
referred to in the text were " to have tain such wharves, piers, bridges and
and to hold real estate, * * * to erect other facilities," etc.
574 Volume 5.
5403. CORPORATIONS. 6403.
(statement of enactment)? and various provisions in detail were con-
tained in the said act last cited, for conserving the rights of all
creditors of both companies and effectually enforcing the same. And
that by the fifth section of said last mentioned act the Central Rail-
road Company of New Jersey -was empowered to (statement of powers
granted}?
To which said acts or charters of February 9, 1831, and February
22, 1849, your informant for greater certainty prays leave to refer.
4. And your informant further informs your honor, that by an act
of the legislature of New Jersey, approved March 17, 1854, the Cen-
tral Railroad Company of New Jersey was authorized and empowered
to erect, build or extend such wharves, docks or piers opposite to
and adjoining the lands owned by it in the township of Elizabeth,
as far into the sound or bay as might be necessary for the purpose of
facilitating transshipment of coal and its general transporting
business, and also to have and hold whatever wharves, piers, lands,
steamboats, sailing vessels and other facilities in the state of New
York or Elizabeth as might be necessary for the managing of its
business. And was also authorized and empowered to increase
its capital stock with the assent of a majority of its stockhold-
ers to any sum not exceeding five millions of dollars, and to change
the par value of the shares of the stock of said corporation by issuing
one share of one hundred dollars at par in place of every two shares of
the value of fifty dollars. And by the third section of said last
mentioned act the said corporation, the Central Railroad Company of
New Jersey, was authorized and empowered to (statement of poit>ers
granted).* And by section/iwr of the said charter it was also provided
(statement of provisions).* And by section sei^en of the said last men-
1. The enactments of the third section solidate the stock of such company
of the act referred to in the text were with their own, on terras to be mutually
to the effect that "when the said pur- agreed upon, with the assent of threc-
chase should have been made, the rail- quarters in interest of the stockholders
road so purchased should become part of the said Central Railroad Company of
of the railroad authorized to be con- New Jersey, with provisions by which
structed by the Somerville and Easton any dissenting stockholder might have
Railroad Company; and in its further the value of his shares of stock ap-
construction and completion, mainten- praised, and thereupon the said cor-
ance, use and enjoyment the said poration was required to take said
roads should be regulated and governed shares of stock at said appraised
by the provisions of the charter of the value."
last named company; and for that pur- 4. The provisions of section four of the
pose all and every provision of the act charter referred to in the text were to
entitled," etc. the effect " that if such purchase or
2. The powers granted under the fifth consolidation should be made, the rail-
section of the act referred to in the text roads so purchased or consolidated, if
authorized the corporation " to pur- in this state, should be and become a
chase and hold lands at the termina- part of the railroad authorized to be
lion of said railroad," etc. constructed by the act incorporating
3. The powers granted by the third sec- said Central Railroad Company of Xc-v
tion of the act mentioned in the text Jersey, and for that purpose every pro-
authorized the corporation " to pur- vision of such act of incorporation,
chase, or lease, or operate any rail- with supplements thereto, to extend
road which might connect with or and be applicable to the railroad so
intersect their roads, or to guarantee purchased or consolidated in every re-
the bonds of said company, or to con- spect as if the same had been author-
575 Volume 5.
6403. CORPORA TIONS. 6403.
tioned act or supplement it was provided that (statement of provisions)}-
And in and by said act it was further enacted that if the company,
within six months from the passage thereof, should file in writing
its assent to an acceptance of the provisions thereof, the act should
take effect immediately thereafter; but that if the company refused
or neglected so to do, then the act should be null and void, and your
informant informs your honor that the said company duly accepted
and filed its acceptance of said act within the said period of six
months, to which said act your informant refers.
5. And your informant further informs your honor, that by an act of
the legislature of New Jersey (title and date of act), the said the Central
Railroad of New Jersey was authorized to extend its railroad from
some point in the city of Elizabeth to some point or points on New
York bay, in the county of Hudson, at or south of Jersey City, and for
that purpose was authorized to use all powers and franchises con-
ferred upon it by the act entitled " An Act to incorporate the Somer-
ville and Easton Railroad Company," hereinbefore in substance set
forth, and was required to construct certain bridges and draw-
bridges within certain prescribed conditions, and was required to
run certain trains for the accommodation of commuters and local
travelers on said road, and in said act certain conditions were con-
tained prohibiting the construction of the said extension of said
railroad nearer than one thousand feet to the Jersey City and Bergen
Point plank road, and conserving the claims of all riparian shore
owners, to which act your informant refers.
6. And your informant further informs your honor, that by an act
of the legislature of New Jersey (title and date of act), the said exten-
sion from Elizabeth to Jersey City was authorized to be constructed,
not nearer than (description of extension), to which act your informant
refers.
7. And your informant further informs your honor, that by an act
of the legislature of the- state of New Jersey, approved March n,
1863, the Central Railroad Company of New Jersey was empowered
to increase its capital stock to any sum not exceeding two millions of
dollars in addition to the then authorized amount of capital stock,
and that by like act approved April 5, 1865, the Central Railroad
ized to be made under the act or char- corporation should be subject to all the
ter of the said Central Railroad Com- conditions and restrictions in taking
pany of New Jersey ." possession of and using the lands re-
1. The provisions of section seven of quired by their act of incorporation,
the act, or supplement, referred to in and to which they were subject re-
the text were to the effect that "the specting land required for said road;
said the Central Railroad Company of with the further provision that if the
Neiv Jersey might alter the location of company located any new line or lines
their railroad, or locate new lines when of tracks within the township of Bridge-
additional tracks should be required, water, and should not own the land
at any point or points, between Phil- lying between the old or lands of the
lipsburg and Elizabethport, not varying new line or lines they might locate,
in any case over one mile from the line the old lines should be vacated and
located and filed, after filing in the the land upon which the same had
office of the secretary of state a survey been constructed should revert to the
of such location as varied from the original owner."
original location, and that the said
576 Volume 5.
6403. CORPORATIONS. 6403.
Company was authorized to increase its capital stock in any sum not
exceeding three millions of dollars in addition to its then authorized
amount of capital. And by an act of the legislature of New Jersey,
approved April 6, 1865, the Central Railroad Company of New Jersey
was authorized and empow-ered to construct a bridge across the
Delaware river jointly with such corporation of the state of Pennsyl-
vania, as has been thereto properly empowered by the said state of
Pennsylvania, which bridge when constructed should not destroy or
materially injure any of the works of the Morris Canal and Banking
Company, or the ferry of said company across the Delaware river,
except by agreement between the said corporations authorized to
build the said bridge and the Morris Canal and Banking Company,
and to protect the rights of navigation as far as practicable in the
interests of the public. The location of piers and abutments of the
said bridge was required, before the same should be constructed, to
be approved by three suitable and disinterested commissioners to be
appointed by the chancellor and the chief justice of this state, and
the said bridge when constructed was to be open to the free use of
any other railroad or canal corporation of the state of Nnu Jersey
for the transportation of passengers or freight upon or over the
same, and to make such connection with the said bridge as might be
requisite to give them the free use of the same for the convenience
of such passengers and freight; and the said corporation so using
said bridge was required to pay to the Central Railroad of New
Jersey tolls not exceeding three cents per ton for each ton of mer-
chandise or freight, and Jive cents per passenger for each passenger
transported over said bridge; and that by an act of the legislature,
approved March 5, 1866, the said the Central Railroad of New Jersey
was authorized and empowered to increase its capital stock to any
sum not exceeding four millions of dollars in addition to the then
authorized amount of its capital stock, to which acts your informant
refers.
8. And your informant further informs your honor, that by an
act of the legislature of the state of New Jersey, approved March
17, 1870, the Central Railroad Company of New Jersey was authorized
and empowered to survey, lay out and construct a branch railroad
from (description of branch road), and was authorized and empowered
to use all powers and franchises granted and conferred by the act
entitled "An Act to incorporate the Somerville and Easton Railroad
Company," passed February 26, 1847, and the supplements thereto;
and by an act .approved March 24, 1872, the said the Central Rail-
road Company of New Jersey was authorized and empowered to in-
crease its capital stock five millions of dollars in addition to the
then authorized amount, and to use the same to take up scrip for
like amount theretofore issued with the assent of the majority in in-
terest of said stockholders, and by the same last mentioned act the
Central Railroad Company of New Jersey was authorized and empow-
ered to construct a branch railroad from (description of branch road);
and for the location, construction and enjoyment of such branch all
the provisions of the charter of the said company and supplements
were made applicable.
5 E. of F. P. 37. 577 Volume 5.
6403. CORPORATIONS. 6403.
9. And your informant informs your honor, that in and by the said
several acts of the legislature of New Jersey, hereinbefore set forth
and stated in substance, and for greater certainty your informant
begs leave particularly to refer to the said acts and provisions thereof,
the purpose and intent for which the said corporation was created
was (Here was stated purpose of creation of corporation)-, and the said
the Central Railroad Company of New Jersey was not authorized and
empowered and could not lawfully use its corporate franchises, pow-
ers and privileges for any other purposes or business whatever, and
that the said the Central Railroad of New Jersey was prohibited, by
necessary implication, from carrying on and from using its capital
stock or corporate funds for carrying on any other business what-
ever than the transportation of passengers and freight in manner
aforesaid, and that the said the Central Railroad Company of New
Jersey had no power whatever of alienating by device, conveyance
or otherwise howsoever, any of its corporate property, railroad, fran-
chises, powers or privileges, except by way of mortgaging for the
purpose of raising funds, for the purpose of the construction of the
railroad and branches authorized to be constructed by the charters
and acts hereinbefore set forth; and your informant further informs
your honor that the Central Railroad of New Jersey proceeded to con-
struct and operate the railroads and branches which it was authorized
by its charter and supplements thereto to construct and operate, and
entered upon and discharged the functions which it was bound by
said acts to undertake and execute, and did execute and perform the
same in conformity to the said charter until about the year eighteen
hundred and seventy-one, when the said the Central Railroad Company of
New Jersey, without authority of law, and in violation of its charter,
entered into an indenture of lease with the Lehigh Coal and Naviga-
tion Company, a corporation created by the state of Pennsylvania, by
which instrument the said the Central Railroad Company of New Jer-
sey pretended to acquire in perpetuity the railroad, branches and
works of the Lehigh Coal and Navigation Company in the state of
Pennsylvania; but your informant informs your honor that the Cen-
tral Railroad Company of New Jersey, at the execution of said lease,
had no authority by any grant or charter from the state of New Jer-
sey to execute said lease in perpetuity or to take the said railroad and
works of the said Lehigh Coal and Navigation Company, nor to operate
and manage said road by the exercise either of the corporate fran-
chises and powers and privileges of the said Lehigh Coal and Naviga-
tion Company, or by the exercise of the corporate franchises and privi-
leges which had been granted to the Central Railroad Company of
New Jersey by the state of New Jersey, but that said lease was wholly
ultra vires of the Central Railroad Company of New Jersey, and was
illegal and void, and an unwarrantable use of the corporate powers
and privileges granted by the state of New Jersey to the said Central
Railroad Company of New Jersey.
10. And your informant further informs your honor, that at or
about the year eighteen hundred and seventy-one, and at or after the
acceptance by the Central Railroad Company of New Jersey of the
lease hereinbefore stated, made to it by the Lehigh Coal and Naviga-
578 Volume 5.
6403. CORPORA TIONS. 6403.
tion Company, the said the Central Railroad Company of New Jersey,
without authority of law and in violation of its charter, purchased
from the Lehigh Coal and Navigation Company a large part, or all of
the rolling stock, equipment, locomotive engines, passenger and
freight cars of the said Lehigh Coal and Navigation Company, used by
it upon its said railroad so demised as aforesaid by it to the Central
Railroad Company, and which said rolling stock, etc. r was purchased
by the Central Railroad Company for the purpose of operating the
said illegally demised railroad, and said last named company used
and applied several millions of dollars of its capital funds, subscribed
and contributed to said capital fund under the aforesaid charter
granted by the state of New Jersey to the said the Central Railroad
Company, to the purchase of the said rolling stock, engines, cars, etc.,
aforesaid, by assuming the payment of the purchase money thereof
then owing by the said Lehigh Coal and Navigation Company. And
your informant shows that such use of the capital funds so sub-
scribed, and constituting a part of the capital authorized by the char-
ter of the said the Central Railroad Company of New Jersey, was
wholly diverted from the uses and intents for which the same was
authorized by the said charter, and applied to a wholly different and
unauthorized use and purpose.
n. And your informant further shows unto your honor, that by a
supplement to the charter of the Somerville and Easton Railroad Com-
pany, which supplement was approved March 21, 1874, the Central
Railroad Company of New Jersey was authorized and empowered, in
order to secure a paying business for its said railroad and works, to
guarantee the payment of the bonds of any coal company or compa-
nies owning or working coal lands along the aforesaid line of, or adja-
cent to any of the aforesaid railroad's branches or works in the state
of Pennsylvania, which were pretended to be leased as aforesaid to
the said the Central Railroad Company of New Jersey, in which lands
the said company may or may not have an interest. That at and
before the time of the passage of this act, and subsequently thereto,
the Central Railroad Company of New Jersey, without any authority
of law, had purchased large quantities of anthracite coal lands in the
state of Pennsylvania, and had expended many millions of dollars of
its capital funds in the purchase of such lands, which use of its said
capital fund was wholly unauthorized by its charter, and had, after
said purchase, pretended to organize a coal company under the laws
of the state of Pennsylvania, under the corporate title of the Lehigh
and Wilkesbarre Coal Company, and pretended to subscribe to, or did
actually purchase with the capital funds of the Central Railroad Com-
pany of New Jersey, a large majority of the capital stock of the said
Lehigh and Wilkesbarre Coal Company, and being in control of the said
Lehigh and Wilkesbarre Coal Company, and in fact the owners thereof,
by means of the use of its capital funds in violation of said charter
in the purchase thereof, proceeded to issue large quantities of bonds
in the name of the said Lehigh and Wilkesbarre Coal Company, and
indorsed thereon the guaranty of the Central Railroad Company of
New Jersey of the payment of the principal and interest of the said
bonds, and that by means of these acts of purchase of coal lands, and
579 Volume 5.
6403c CORPORA TIONS. 6403.
the formation of the said Lehigh and Wilkesbarre Coal Company, which
was owned and is still owned and controlled by the Central Railroad
Company of New Jersey, and acquired by the use of the capital funds
of said last mentioned company authorized to be raised by its char-
ter and supplement hereinbefore stated, the said the Central Railroad
Company of New Jersey became in fact the owner of a large part of
the anthracite coal-bearing territory of the United States, situated
in the said state of Pennsylvania, and entered into the regular busi-
ness of mining and selling coal, which said business was ultra vires
and unauthorized by the charter of the said the Central Railroad
Company of New Jersey ; and the said the Central Railroad Company
of New Jersey entered into the said business of mining and selling
coal so extensively that the annual product of its mines and the
annual sales of coal by said company amounted to many millions of
tons ; and the said the Central Railroad Company oj New Jersey became
and has continued from thence until this time to be one of the largest
producers and sellers of anthracite coal in the United States, and still
continues, in violation of law and its charter, to be such producer
and dealer in anthracite coal. And your informant shows your honor
that all these acts aforesaid of the Central Railroad Company of New
Jersey were intended to be, and are in fact, acts tending to a mo-
nopoly of the business of making and selling anthracite coal, and are
wholly violative of its charter aforesaid.
12. And your informant further informs your honor, that on or
about the twenty-ninth day of May, eighteen hundred and eighty-three,
the said the Central Railroad Company of New Jersey, without any
authority of law enabling it thereto, executed and delivered to the
Philadelphia and Reading Railroad Company, a corporation of the
state of Pennsylvania, an indenture of lease by which it purported
and affected to demise to (Here was set out purport of lease'),' 1 and
delivered the possession of all its property at the date of said lease
to said lessee ; and that one Alfred Mills and John H. Lidgerwood,
executors of the will of Stephen Vail, deceased, filed their bill of com-
plaint in this court, praying to have the said lease decreed to be null
and void, and to be set aside and for nothing holden, and to have the
said the Central Railroad Company of New Jersey reinstated in the
rights and repossessed of the property which was so demised and
conveyed by the said alleged instrument of lease, and that in said
suit such proceedings were had and taken that the cause came on to
a hearing before this court upon the pleadings and proofs in the
cause, and the chancellor having duly considered the same, and
heard the arguments of counsel thereon, adjudged and determined
that the said the Central Railroad Company of New Jersey had no
1. The purport of the indenture of lease renewal, extension, alteration or im-
referred to in the text was to demise provement of the said demised railroad
" to the said the Philadelphia a nd Read- and works, and their appurtenances,
ing Railroad Company, for the period of reserving in said instrument an annual
nine hundred and ninety-nine years, its rent, equal to six per cent, upon the par
railroad and works and all appendages, value of the then outstanding capital
and convey to it all its propertv, real stock of the Central Railroad Company
and personal, rights, powers, fronch'.ses of New Jersey"
and privileges for the maintenance,
580 Volume 5.
6403. CORPORATIONS. 6403.
power and authority, by virtue of its charter, or any of the supple-
ments thereto, or by any other act of the legislature of the state of
New Jersey, to enter into such indenture of lease, or to demise its
property, powers, privileges and franchises, Or any of them, to any
other corporation or corporations, and by the decree of this court
the said indenture of lease was wholly set aside, and decreed to be for
nothing holden, and the said the Philadelphia and Reading Railroad
Company was ordered and decreed to (Here was set out^effect of decree), 1 -
and for greater certainty your informant refers to the record of the
proceedings in this cause as the same appear of record in the Court
of Chancery of New Jersey, which record your informant is ready and
offers to produce and prove.
13. And your informant further shows unto your honor, that on or
about the third day of November, eighteen hundred and ninety, A. A.
McLeod, I. A. Sweigard, William R. Taylor, D. Jones, Robert S. Davis y
John Walker, Jr., all of the city of Philadelphia in the state of Penn-
sylvania, and all of whom are officers and persons in the employ of
the Philadelphia and Reading Railroad Company, together with Nathan
Francis and others of the state of New Jersey, whose names are set
forth in the certificate of articles of association hereinafter men-
tioned, formed themselves into a railroad corporation by the name
of the Port Reading Railroad Company, under an act of the legisla-
ture of the state of New Jersey entitled (title and date of act), and the
acts supplementary and amendatory thereof, for the alleged purpose
of constructing, maintaining and operating a railroad for the public
use, in the conveyance of persons and property, to begin at (descrip-
tion of line of road). The amount of the capital stock of the said
company was declared to be two millions of dollars in twenty thousand
shares of the par value of one hundred dollars; and (names of directors)
were constituted and appointed and became the directors of the said
company to manage its affairs for the first year, all of whom are.
officers or agents of the Philadelphia and Reading Railroad Company^
and that the present directors of the said Port Reading Railroad Com-
pany are (names of directors'), all of whom your informant avers to be
officers or agents of the Philadelphia and Reading Railroad Company,
and that all the moneys which have been paid and expended hereto-
fore, and are being paid and expended in the construction of the
railroad of the said Port Reading Railroad Company, have been paid
and are being paid by the Philadelphia and Reading Railroad Company,
and that the said Port Reading Railroad Company is, in fact, owned
and controlled by the Philadelphia and Reading Railroad Company,
through the nominal officers and directors of the Port Reading Rail-
road Company and solely in the interest of and for the benefit of the
1. The decree referred to in the text to re-enter into the possession of the
ordered the Philadelphia and Reading same and to discharge all its corporate
Railroad Company " to restore to the powers and privileges, and to perform
Central Railroad Company of New Jersey all its functions as .a transporter of
all its railroads, property, assets, persons and passengers, and in the
works and appurtenances purported management of its said roads, works,
to have been demised as aforesaid, and property, franchises and privileges as
the said the Central Railroad Company if the said lease had never been exe-
of New Jersey was decreed and ordered cuted."
581 Volume 5.
6403.
CORPORA TIONS.
6403.
Philadelphia and Reading Railroad Company, and that the orincipal
office of the Port Reading Railroad Company is at No. 227 South
Fourth street, Philadelphia, which is the office of the Philadelphia and
Reading Railroad Company.
14. And your informant further shows unto your honor, that on or
about the twelfth day of February, eighteen hundred and ninety-two,
the Central Railroad Company of New Jersey executed and delivered
to the said the Port Reading Railroad Company an indenture of lease
wherein the lessor is denoted the " Central Company," and the lessee
is denoted the ''Port Reading Company" and by the said indenture
of lease the Central Company pretended to {Here was set out the pur-
port of the indenture of lease).*
1. The purport of the lease referred to
in the text pretended " to let and de-
mise the Port Reading Company, its suc-
cessors and assigns, for the term of
nine hundred and ninety-nine years, the
entire railroad of the Central Company,
as the same was then located and con-
structed, or as the same might be
thereafter located and constructed, in
pursuance of any and every lawful
authority now existing, or which might
hereafter exist, together with all its
right to construct, maintain and oper-
ate the following described railroads:
The Central Railroad of New Jersey, in-
cluding its following branches (naming
the branches), together with all the
branches, laterals, extensions, sidings,
turnouts, tracks, bridges, viaducts, cul-
verts, rights of way, water rights and
privileges, all lands, shops, machinery,
fixtures, depots, stations, water sta-
tions, nouses, buildings, structures,
improvements, tenements, heredita-
ments of whatever kind and descrip-
tion, wherever situate, pertaining to
the operation and maintenance and
renewal of the said railroads, which
were then held, leased or owned by the
Central Company, or which may at any
time hereafter during the term of said
demise be acquired by the Central Com-
pany for railroad purposes at the
request of the Port Reading Company,
pursuant to the betterment clause of
the said lease, together with all the
ferries and rights of ferriage then be-
longing to or which might thereafter
be required for the purposes aforesaid
by the Central Company, and all engines,
stationary and locomotive, cars, ten-
ders, trucks and other rolling stock,
tools, implements, machinery and per-
sonal property of every kind and
description, in use or intended or
adapted for use, upon or about the
railroad premises demised, or the busi-
ness thereof, including ferry-boats,
steamboats, tugs, floats, barges and
other vessels, belonging to the Central
Company.'" And it was therein declared
to be the intention and agreement of
said corporate railroad parties " that all
cars and other rolling stock then used by
or in the possession of the Central Com-
pany under the terms of any car trust,
should, when and so soon as they
should become the property of the Cen-
tral Company, and to the extent of
the interest of the Central Company
therein, be included in the terms of the
said lease, and all rights, benefits and
privileges of any nature whatsoever
then enjoyed, or which might there-
after be enjoyed by the Central Com-
pany, relating and pertaining to the
demised property, together with all
rights, powers, franchises, other than
the franchise of being a corporation,
and privileges which might then, or at
any time thereafter, during the afore-
said term, be lawfully exercised or
enjoyed in or about the use, manage-
ment, maintenance, renewal, exten-
sion, alteration or improvement of the
railroad's premises, or appurtenances,
be demised, excepting and reserving
nevertheless out of the demised prem-
ises a certain building in the city of
New York, at the corner of Liberty and
West streets, known as ' The Central
Building? and all other real estate
owned or held by the said Central Com-
pany not adjacent to said railroads, or
if adjacent, not used or required for
the purposes of the business of the
demised railroads and their appurte-
nances; providing, however, that all
real estate included in the lease, but not
then personally used for railroad pur-
poses although forming part of the
demised premises and remaining in
the possession of the Central Company,
and the income of any parcels which
582
Volume 5.
6403.
CORPORA TIONS.
6403.
And your informant further shows unto your honor, that the
said indenture of lease contains a large number of covenants
relating to matters of detail between the said corporations which
cannot be conveniently set -forth at large in this information,
and for the particulars of the said indenture of lease, and the
covenants and demises therein contained, your informant prays
leave to refer to a copy of the said lease, which your informant
has appended to this information, and which, copy was fur-
nished to your informant for his official use by the counsel of the
said lessor and lessee corporations to this informant.
15. And your informant further shows unto your honor, that in
the pretended performance of said lease the said the Central Rail-
road Company of New Jersey has delivered into the possession of the
Port Reading Railroad Company the actual possession of all the rail-
roads enumerated in the said indenture of lease both within and
might by lease or otherwise produce
income, remaining after payment of
taxes on such parcels, should belong to
the Central Company until required for
railroad purposes, and when so re-
quired, the possession thereof should
be delivered over to the Port Reading
Company, who should thereafter use
and enjoy the same under the said
lease. And in consideration of said
demise, the Port Reading Company
covenanted to pay as rent for said de-
mised premises: A. All interest, divi-
dends, rentals, guarantees, and all
other charges which the Central Rail-
road Company was then, or might at
any time thereafter be obliged in any
manner to pay, which sums should be
paid in equal monthly instalments
during the said term, on the first day
of each month, and it was provided
that the first payment for the year
189.? should be made on the first day of
February, 189^, and a further sum in
each and every year which should be
equal to seven per centum per annum
upon the then present outstanding capi-
tal stock of the Central Company, in-
cluding as such outstanding stock any
stock thereafter issued under the obli-
gations of its convertible debenture
bonds, which sums should be paid in
equal monthly instalments on the first
day of each month in each year during
the said term, commencing on the first
day of February, 189.2, and a further sum
equal to fifty per cent, of the surplus
earnings over the seven per centum
therein above stipulated which should
have accrued to the Port Reading Com-
pany during each calendar year of the
term of said lease from all the trade,
traffic, business and income of the de-
mised premises; provided, that no
amount should be paid to the Central
Company as its share of such surplus
earnings in excess of a sum equal to
three per cent, additional upon the said
outstanding capital stock of the Central
Company, including as such outstand-
ing stock any stock thereafter issued
under the obligations of its convertible
debenture bonds thereinbefore men-
tioned, and payment of this last
mentioned amount should be made in
one annual payment at the end of
each year during said term, the first
payment to be made on the first day
of January, i89j, and annually there-
after on each first day of January.
And the Port Reading Company, in
and by the said indenture of lease,
and during the continuance of the
term thereby demised, assumed the
payment of and covenanted punc-
tually and faithfully to pay all taxes
and assessments upon the capital stock
of the Central Company, upon the
yearly payments therein agreed to be
made by the Port Reading Company to
the Central Company, and upon the
dividends declared and paid by the
Central Company to its stockholders
out of the said yearly rent, for the
payment or collection of which taxes
or assessments the Central Company
would otherwise be liable or account-
able under any lawful authority what-
ever; provided, that the Port Reading
Company should not be liable or re-
sponsible for taxes or assessments on
any dividends or part of a dividend
paid by the Central Company out of any
other funds than the aforesaid yearly
rent."
583
Volume 5.
6403. CORPORA TIONS. 6403.
without this state, and all its rolling stock, locomotives, freight and
passenger cars and all the property indispensable in the operation of
the said railroads, and has actually surrendered to the said Port
Reading Railroad Company the enjoyment and use of all its corporate
franchises granted to it in and by the aforesaid charter of the Central
Railroad Company of Nav Jersey and the supplements thereto herein-
before set forth and referred to, and that the Central Railroad
Company of New Jersey has absolutely stripped itself, so far as it has
been able to do so, of all the franchises, powers, privileges and prop-
erty indispensable in the performance of its duties to the state of
New Jersey and to the inhabitants thereof, under its aforesaid charter
and the supplements thereto, and is absolutely unable to discharge
or perform in any wise any of the public duties which by virtue of
the said charter and supplements, it owes to the state of New Jersey
and the inhabitants thereof, and to the public, and that the said the
Central Railroad Company of New Jersey, by force of the premises, is
now absolutely unable to perform any of its corporate duties.
16. And your informant further shows unto your honor, that the
said pretended indenture of lease is not a bona fide indenture of
lease, but was intended by both the said railroad corporations to be
a mere cover or means by which to carry out and effect the transfer
of the actual exercise and enjoyment of the corporate franchises of
the Central Railroad Company of New Jersey to the Philadelphia and
Reading Railroad Company, a foreign corporation created by the state
of Pennsylvania, and to transfer the railroads, franchises and rolling
stock, engines, cars and other property set forth in the said pretended
lease, into the possession and enjoyment of the said the Philadelphia
and Reading Railroad Company, and to turn over to the said last men-
tioned company the actual operation of the said railroads, and the
carrying on of all the business of the said the Central Railroad Company
of New Jersey, and the enjoyment of all the corporate franchises,
privileges and powers of the Central Railroad Company of New Jersey,
and the performance of all the public duties which it owed and owes
to the state of New Jersey and inhabitants thereof and to the public.
17. And your informant, in fact, informs your honor, that it never
was intended by the Central Railroad Company of New Jersey to
demise and let its corporate franchise, powers, privileges and prop-
erty to the Port Reading Railroad Company, but in fact to demise and
let the same to the Philadelphia and Reading Railroad Company; and
that this same intent was likewise held by the said Port Reading
Railroad Company and the Philadelphia and Reading Railroad Com-
pany, and that the real intent of the said parties was before the
pretended making of the said pretended lease, by other and further
instruments, to immediately transfer the term, granted by said lease,
and all the demised corporate powers and property, to the Philadel-
phia and Reading Railroad Company; and that in fact the Central Rail-
road Company of New Jersey absolutely refused to execute the said
pretended lease, hereinbefore set forth, to the Port Reading Railroad
Company, until, by other and further instruments duly executed for
that purpose between the said three corporations, the said term
granted in said lease, and the payments of rent reserved thereby,
584 Volume 5.
6403. CORPORATIONS. 6403.
should be in fact passed to, and be assumed, together with the posses-
sion of all the demised corporate powers, privileges and property, to
the Philadelphia and Reading Railroad Company; and that at and before
the execution of the said pretended lease to \hzPort Reading Railroad
Company, the instruments necessary to effect said intent and purpose
of all the parties were prepared and actually executed to effect such
result, and to substitute the Philadelphia and Reading Railroad Com-
pany in the place of the Port Reading Railroad Company, one of which
instruments is hereinafter set forth and a copy of which is appended
to this information, and to which your informant begs leave particu-
larly to refer, which copy was furnished to your informant for official
use by counsel of said companies.
1 8 And your informant further shows unto your honor, that the
Philadelphia and Reading Railroad Company is a railroad corporation
of the state of Pennsylvania, and that neither its property nor fran-
chises, nor the persons of its president and directors are within the
jurisdiction of this state, and that the state of New Jersey would
have no practical means of enforcing, through its courts, the due per-
formance of the public duties owing by the Central Railroad Company
of New Jersey to the state, its inhabitants and the public, either as
against the Central Railroad Company itself or against its actual lessee,
the Philadelphia and Reading Railroad Company, in case the said lease
and other instruments should be construed to be valid and effectual
in law, but that the state of New Jersey would be wholly without
redress in the premises.
19. And your informant further shows unto your honor, that the
Philadelphia and Reading Railroad Company is very largely engaged
in the business of mining and selling coal. That it is the owner of
the capital stock of the Philadelphia and Reading Coal and Iron Com-
pany, in whose name it holds and owns very large tracts of territory,
containing very large deposits of anthracite coal, in the state of Penn-
sylvania; and also is the owner of the capital stock of other coal
companies in like position, and that by means of its ownership of
said stock and coal lands, the said the Philadelphia and Reading Rail-
road Company is the largest miner, producer and seller of anthracite
coal in the United States; and that before the execution of the said
pretended lease and the instruments before mentioned, the said the
Philadelphia and Reading Railroad Company was a competing coal
miner, owner and seller and dealer, in anthracite coal, producing and
selling the greatest number of tons of anthracite coal which were
produced and sold by any concern in the anthracite coal business in
the United States; and that the Easton and Amboy Railroad Company,
which is owned by the Lehigh Valley Railroad Company, a corporation
of Pennsylvania, and through its connection with the said last men-
tioned company, which was also a very large owner of the anthracite
coal territory of the state of Pennsylvania, was, as the agent of, or in
connection with, the Lehigh Valley Railroad Company, very largely
engaged in the business of mining, transporting and selling coal, and
that its revenues and success, and the revenues and prosperity of the
Lehigh Valley Railroad Company were almost entirely dependent upon
the successful transaction of their said coal business, and they were
585 Volume 5.
6403. CORPORA TIONS. 6403.
active competitors with the Philadelphia and Reading Railroad Com-
pany, in the production, transporting and selling of coal. And that
the said the Central Railroad Company, through its ownership of the
coal lands of the Lehigh and Wilkesbarre Coal Company, and of various
other coal lands, was the owner of a very large tract of anthracite
coal territory, in the state of Pennsylvania, and dependent mainly for
its revenues and success upon its competing business with the Easton
and Amboy Company and the Philadelphia and Reading Railroad Com-
pany in the said coal business.
And your informant in fact shows that the said three corporations,
the Philadelphia and Reading Railroad Company, the Easton and Amboy
Railroad Company and the Central Railroad Company of New Jersey, view
and have for many years past been in active and continual competi-
tion with each other in the coal business, and that the intent of all
the parties to the pretended instrument of lease, and other instru-
ments hereinbefore set forth, was by said instruments and by further
lease or other instruments to combine the said three corporations in
the conduct of the said coal business, and to put an end to all com-
petition between them. And your informant in fact shows that by
reason of the ownership and control by the said three corporations of
the said anthracite coal lands in the state of Pennsylvania, they are in
fact the owners and controllers of at least sixty per cent, of the
entire anthracite coal field of the United States advantageously
accessible by the inhabitants of the state of New Jersey; and that a
supply of anthracite coal at fair prices i$ an absolute necessity on the
part of every householder in the state of New Jersey, it being the
most convenient and most economical fuel for all the households of
t'.ie said state, and that the intent of the said three corporations in con-
ceiving and in executing the said pretended lease, and the instruments
before referred to, was and is to control the market in the state of
New Jersey for the supply and sale to the inhabitants of the state of
New Jersey of anthracite coal, and to fix the price thereof at such
rates as will be most profitable to the said corporations. And your
informant shows that all these proceedings and acts on the part of
the Philadelphia and Reading Railroad Company, the Port Reading Rail-
road Company and the Central Railroad Company of New Jersey tend
directly to a monopoly of the trade in anthracite coal in the state of
New Jersey and to the manifest oppression of the inhabitants
thereof.
20. And your informant shows, that in the execution of the scheme
aforesaid, and for the accomplishment of the result aforesaid, and in
order to assure to the Central Railroad Company of New Jersey its due
share in the proportion of the profits arising and to arise therefrom,
and it being well known both to the Central Railroad Company of New
Jersey and the Philadelphia and Reading Railroad Company that the
Port Reading Railroad Company was wholly incompetent to perform
the covenants for the payment of money which were contained iii
the said pretended lease, and was wholly incompetent and unable to
exercise the corporate franchises, powers and privileges of the said
the Central Railroad Company of New Jersey, or to perform the pub-
lic duties which said last mentioned company owed to the state of
586 Volume 5.
6403.
CORPORATIONS.
6403.
New Jersey, its inhabitants and the public, the said corporations
agreed to substitute for said Port Reading Railroad Company a cor-
poration more able to perform such covenants and duties aforesaid, and
at and before the pretended execution of the pretended lease from the
Central Railroad Company of New Jersey to the Port Reading Railroad
Company, the Central Railroad Company of New Jersey, the Philadelphia
and Reading Railroad Company, and the Port Reading Railroad Com-
pany entered into and mutually executed and delivered "a certain con-
tract and agreement made on the twelfth day of February, A. D.
eighteen hundred and ninety-two, in and by which said agreement it
was recited that (Here were set out recitals of agreement}?-
1. The recitals in the agreement re-
ferred to in the text were as follows:
" Whereas thelinesof railroads owned,
leased and operated by the parties
thereto were connected at several points
in the states of Pennsylvania and New
Jersey, and formed continuous lines of
railroad between numerous cities of
commercial importance, capable of pro-
ducing large contributions of freight
and passenger traffic to the lines of said
companies, if worked as continuous
lines; and whereas, the Central Com-
pany and the Port Reading Railroad
Company had negotiated for a lease of
all the lines of railroad of the Central
Company, whether owned by it or ac-
quired by virtue of any lease to the
Port Reading Company for the term and
period of nine hundred and ninety-nine
years, upon the payment of the annual
rentals, and the performance of the cer-
tain covenants, agreements and stipu-
lations contained in the said proposed
lease, a copy whereof was thereto at-
tached and made a part thereof, which
said lease the Central Company was
willing to execute and deliver if the
Reading Conpany should guarantee the
prompt and punctual payment to the
Central Company by the Port Reading
Company of the rentals reserved in the
said lease as and when the same should
become due and payable, and should
also guarantee the full and faithful per-
formance by the Port Reading Company
of all the covenants, stipulations and
agreements contained in the said lease
by it, the said Port Reading Company, to
be kept and performed on its part, and
the Central Company was willing to exe-
cute and deliver the said lease upon
the execution of this contract by the
Reading Company, whereby there would
be assured to the said lines of the Cen-
tral Company, in addition to the traffic
now tributary thereto, such an increase
of the traffic thereon as would secure to
ihe Port Reading Company sufficient reve-
nue to meet and pay the said rentals,
and perform the covenants and stipula-
tions contained in the said lease; and
whereas, in consideration of the benefits
and advantages to be derived there-
under from the use of the terminal
properties and facilities of the Central
Company so to be leased to the Port
Reading Company, and from the inter-
change of traffic therein provided for
the Reading Company was willing to
guarantee to the Central Company the
payment by the Port Reading Company
of the rentals reserved in the said pro-
posed lease, and the performance by
the said Port Reading Company of all the
covenants, stipulations and agreements
of the said lease by it to be kept and
performed, and also all of the cove-
nants, stipulations and agreements
therein contained and written to be
kept and performed by the said Port
Reading Company; therefore, in con-
sideration of the premises and of the
mutual covenants and agreements in
said contract or agreement contained,
and as well for and in consideration of
the sum of one dollar by each of the
parties thereto paid to each of the other
parties thereto, the said corporate par-
tics agreed and covenanted among
other things First that the Central
Company and the Port Reading Company
should immediately execute and deliver
the said alleged lease of the railroads
and other property of the Central Com-
pany, a copy of which is attached to
the said contract or agreement, and
that the possession and control of the
railroads and other property of the
Central Company so leased should forth-
with be taken by the Port Reading
Company. Second, that the Reading
Company should and would guarantee,
and thereby did guarantee, unto the
Central Company the prompt payment
by the Port Reading Company to the
587
Volume 5.
6403. CORPORATIONS, 6403.
And the said contract or agreement contained various other cove-
nants and agreements in detail, which are too voluminous to set
forth in this information, but your informant has appended to this
information a copy of the said articles of contract and agreement,
fully setting forth all the mutual covenants, contracts and agreements
of the said parties thereto, to which your informant begs leave par-
ticularly to refer.
And your informant shows that the Reading company had no power,
either by the laws of this state or by its charter or otherwise, to
make said agreement, or to give said guarantee to said Central com-
pany, nor did said Central company have any power to accept or
receive the same, and that such agreement and guarantee and each of
them were and are ultra vires of the Reading company and void, and
were and are likewise ultra vires of the Central company, and for that
reason also void.
21. And your informant further shows unto your honor, that in and
by an act of the legislature of the state 'of New Jersey, approved
April 4, 1871 (Rev., p. 1096), it is enacted that (Here was set out sub-
stance of enactment},' 1 and that the said act still remains in effect and
unrepealed ; and that by the laws of this state the aforesaid alleged lease
so made and executed by the Central Railroad Company of New Jersey
is invalid and of no effect until the execution of the same shall have
been acknowledged or proved as conveyances of land in this state
are required to be acknowledged and proved; and that the said
alleged lease is also invalid and of no effect unless the parties thereto
shall have lodged the same with the secretary of state for record
within thirty days from the date of the execution thereof. And your
informant in fact shows unto your honor that the said alleged lease
has never been acknowledged or proved as conveyances of land in
this state are required by law to be acknowledged or proved, and
that the said indenture of lease has never been lodged with the sec-
Central Company of the various sums franchise privileges or any part thereof
fixed and appointed in said lease to be of any company or organization, incor-
paid, and the said Reading Company did porated by or under the laws of this
thereby guarantee unto the Central Com- state, shall be acknowledged or ap-
pany that the Port Reading Company proved as conveyances of lands in this
should at all times during the continu- state are authorized to be acknowledged
ance of the said lease fully and faith- or approved, and shall be recorded in
fully keep and perform each and every the office of the secretary of state with-
of the covenants, agreements and stipu- in two months after the execution
lations contained therein to be kept thereof, at the proper cost of the par-
and performed by the said Port Reading ties thereto; and unless such contract
Company, and should, during the con- or agreement is lodged with the secre-
tinuance of said lease and of the said tary of state for record within thirty
contract, fully and faithfully keep and days from the date of the execution
perform on its part each contract, cove- thereof, the same shall become invalid
nant and stipulation in said agree- and of no effect, and copies of the said
ment to be kept and performed by it, record, duly certified by the secretary
the said Port Reading Company." of state, shall be received in evidence in
1. The enactment referred to in the text any court of this state, and be as good,
is to the effect that " all contracts or effectual and available in law as if the
agreements for the sale, letting, leas- original contractor agreement was then
ing, consolidating, merging or in any and there produced."
manner disposing of or transferring the
588 Volume 5.
6403. CORPORATIONS. 6403.
retary of state for record within thirty days from the date of the
execution thereof; and has never, in fact, been recorded by the said
secretary of state, although more than thirty days have now elapsed
from the date of the execution thereof, and that the said indenture
of lease is therefore, by the prescriptions of the statute aforesaid,
absolutely invalid and of no effect.
22. And your informant further shows unto your honor, that
under the pretended authority of the said alleged indenture of lease,
and of the tripartite agreement hereinbefore set forth, the said the
Philadelphia and Reading Railroad Company, which is a foreign cor-
poration created by the state of Pennsylvania, has actually entered
into the possession of, and is in fact now in possession of all the
railroads, branches, etc., of the Central Railroad Company of New
Jersey specifically set forth in the said pretended indenture of lease,
and has entered upon, and is now actually in the enjoyment and
exercise of, and now actually possesses all the property, railroads
and corporate powers, privileges and franchises of the said the Cen-
tral Railroad Company of New Jersey and is operating the same; and
that the said the Central Railroad Company of New Jersey has no
actual possession of any of its corporate property, franchises, powers
and privileges, excepting that of the franchise to be a corporation,
and that the Central Railroad Company has fully ceased to exercise its
corporate powers, privileges and franchises, and to manage and
operate any of the said railroads and branches, etc., specifically set
forth in the said alleged indenture of lease, or to perform or dis-
charge any of the public duties which, under and by force of the said
charter and the supplements hereto, it owes to the state of New
Jersey, and to the inhabitants thereof, and to the public, but has
wholly surrendered the same to the Philadelphia and Reading Railroad
Company in the execution of the intent and agreement hereinbefore
stated, which was entered into and contrived between the three cor-
porations aforesaid as hereinbefore stated, and to effectuate which
the said pretended lease and the said tripartite agreement and other
instruments to your informant unknown, were conceived and exe-
cuted; and the said the Philadelphia and Reading Railroad Company is
now engaged in the practical execution of the said scheme and con-
trivance agreed upon between the three corporations for the purpose
of carrying into effect a monopoly of the anthracite coal business in
the state of New Jersey, and with the intent to artificially increase
the price of coal as hereinbefore stated to your honor.
23. And your informant in fact shows unto your honor, that the
said the Philadelphia and Reading Railroad Company, with the intent
and for the purpose of carrying into effect the said agreement for a
monopoly of the said anthracite coal trade,- and of artificially and
arbitrarily increasing the profits to be derived from the said business
in the said state, to the oppression of the inhabitants thereof, has
actually increased the prices of anthracite coal, and is now selling
anthracite coal of various classes at greatly increased rates per ton
beyond the prices which were exacted for the same class and quality
of anthracite coal at and before the entering into the said scheme for
a monopoly, and the execution and delivery of the said alleged lease,
589 Volume 5.
6403. CORPORATIONS. 6403.
and the said tripartite articles of agreement, to wit: (Here were set
out facts showing the increased selling price of coal.}
And your informant further shows unto your honor, that the
period of the year between the twenty-third day of March, i892, and
the second day of May, i&92, is a period in which in the natural
course of production and consumption the wholesale price of coal
ordinarily is materially reduced, but during the period aforesaid it
has been arbitrarily increased by means of the combination afore-
said, and the instruments aforesaid, an average of fourteen cents per
ton.
And your informant shows unto your honor, that the object and
purpose in making the lease of the Central Railroad 'to the Port Read-
ing Railroad was to restore the price of coal to the high figures which
existed before the competition between the various coal roads had
affected the market. The manifest purpose was to prevent natural
and healthy competition between the various coal roads and coal com-
panies, which benefits the public and regulates the market. On page
eight of the report of the president and managers to the stockholders
of the Philadelphia and Reading Railroad Company (a copy of which
report is attached to this information) the president and managers
say : (quotation concerning company's coal traffic. )
And your informant shows unto your honor, that since the Read-
ing Railroad system has been operating the Central Railroad of New
Jersey and its branches, with the other coal roads and coal com-
panies which belong to said combination, the price of coal has
increased from five to twenty-five cents per ton to the wholesale
dealers, varying with the different grades, and it is universally
believed and stated in the public journals that the price is to be
again advanced in a short time, and the retail dealers will then be
obliged to make a large advance to the consumers, so that the prices
will not only reach the maximum before the large production and
competing transportation reduced the price in i890 and i891,
but, the control being in the power of the combination, effected
by the lease of the Central to the Port Reading, it will have no limit
but the necessities of the various coal and transporting companies
who are directly or indirectly interested in the combination.
And your informant avers that the use to which the said combi-
nation has been put, by the aforesaid corporate parties thereto, has
been to arbitrarily impose upon the inhabitants of the state of New
Jersey an arbitrary increase of price in the article of anthracite coal,
which is a necessary of life, an exaction of a very great amount, and
amounting in the aggregate to at least two hundred and eighty thou-
sand dollars per annum; and your informant in fact avers that that
sum of money will be exacted from the people of the state of New
Jersey .at the mere will of the said corporate defendants, acting
through the Philadelphia and Reading Railroad Company.
And your informant further informs your honor, that if the said
corporate defendants be permitted still further to prosecute their
design, the price of anthracite coal may be and will be increased by
them to a much greater extent, and that there will be no limit to the
further exaction of the said corporate defendants, in respect to the
590 Volume 5.
6403. CORPORATIONS. 6403.
price of anthracite coal, except that which may be fixed by the mere
forbearance of the said corporate defendants.
And your informant further informs your honor, that he is
informed and believes that various other instruments have been
executed and delivered between the said corporate parties thereto,
or between the said corporate parties thereto and other persons
to your informant unknown, in effectuating and carrying out
their aforesaid combination, and investing the possession of the
corporate powers, franchises, privileges and property, and the use
and exercise thereof of the Central Railroad Company of New Jersey, in
the Philadelphia and Reading Railroad Company, which are not of rec-
ord or within the state of New Jersey, and not accessible to your
informant, but are concealed from him and from the knowledge of
the state of New Jersey, and he prays that the parties defendant
hereto may answer this averment particularly, and may set forth and
append to their answer a copy of all and every instrument or con-
tract, lease or otherwise, which has been executed and delivered
between the said corporate defendants or between them or other
persons whereby or whereunder the said the Philadelphia and Read-
ing Railroad Company claims to have authority to possess and manage,
directly or indirectly, the corporate franchises, powers and privi-
leges, railroad and property of the Central Railroad Company of New
Jersey.
24. And your informant further shows unto your honor, that by an
act of the legislature of the state of New Jersey, approved May 2,
1885, and entitled " An Act respecting the lease of railroads," it was
enacted that (statement of enactments)?-
25. And your informant informs your honor, that the aforesaid
indenture of lease, purporting to have been made and executed by
the Central Railroad Company of 'New Jersey to the Port Reading Rail-
road Company, was contrived and agreed upon between the Central
1. The enactment referred to in the text act of the legislature, passed for that
was to the effect " that no company purpose, nor until the corporation or
* * * should have power to lease corporations, person or persons, parties
its road, or franchise, or any part to such proposed lease, union, consoli-
thereof, to any foreign corporation, or dation or merger, should first, and as
to any resident of any other state, or a condition precedent to the same, file
to unite, consolidate or merge its stock, in the office of the secretary of state an
property, franchise or road, or any agreement, to be approved by the .
part thereof, with those of any foreign governor and attorney-general, surren-
corporation or resident of any other dering to the state all rights of exemp-
state until the consent of the legis- tion from taxation, and all privileges
lature of this state should have been and advantages arising from any
first obtained thereto; and that if any alleged contract establishing any
corporation aforesaid should desire to special mode of taxation in respect to
execute such lease or effect such union, said parties, and agreeing further that
consolidation or merger, it should sub- such lease, union, consolidation or
mit a draft of the proposed lease, or merger should not in anywise affect
of the detailed scheme of union, con- or impair the right of the state to take
solidation or merger, as the case might the property of such parties thereto
be, to the legislature of this state for under any existing law of the state,
its consideration, and no such lease, and that any law affecting such parties
union, consolidation or merger should should be subject to alteration or repeal
be of any effect whatever until the by the legislature."
same should have been approved by an
591 Volume 5.
6403. CORPORATIONS. 6403.
Railroad Company of New Jersey, the Port Reading Railroad Company
and the Philadelphia and Reading Railroad Company, as a mere cover
and nominal compliance with the laws of the state of New Jersey,
but with the intent and purpose of evading and committing a fraud
upon the aforesaid act of May 2, 1885, and to transmit to the Phila-
delphia and Reading Railroad Company the corporate privileges and
franchises of the Central Railroad of New Jersey, and of entrusting
the custody and enjoyment thereof and the management and opera-
tion of its property and franchises to the same, without first obtaining
the assent of the legislature of New Jersey to such transfer, as
required by the aforesaid act of May 2, 1885; that the Port Reading
was then in fact owned and controlled by the stockholders, or some
of them, of the Philadelphia and Reading Railroad Company; that the
original stock of the Port Reading Railroad Company, subscribed under
its articles of incorporation, was subscribed wholly by officers,
directors, agents or stockholders of the Philadelphia and Reading
Railroad Company, and that such subscribers took their said shares of
capital stock and hold the same as trustees for the Philadelphia ana
Reading Railroad Company, and that the beneficial use of said capital
stock is equitably vested in the said the Philadelphia and Reading
Railroad Company.
26. And your informant further informs your honor, that the said
the Port Reading Railroad Company, so far as the same has been con-
structed, has been in fact constructed with moneys furnished by the
Philadelphia and Reading Railroad Company, directly or indirectly;
that Albert Foster, James M. Landis, W. H. Blood, P. W. Stone and
Charles H. Quarles, each and every one of whom was and is an officer
or agent of the Philadelphia and Reading Railroad Company, organized
themselves into a company under the provisions of the "Act con-
cerning corporations of the State of New Jersey," approved April 7,
1875, and the supplement and amendments thereto, under the name
of the Port Reading Construction Company, with an authorized capital
stock of $100,000, on or about the third day of November, i890, and
that the actual capital stock subscribed for and paid in of the said
authorized capital stock was subscribed and paid as follows: (State-
ment of subscriptions) ; that by the return of the said Port Reading
Construction Company, made to the department of the state board of
assessors of New Jersey, for the year i892, made pursuant to the
provisions of an act entitled " An Act to provide for the imposition
of state taxes on certain corporations, and for the collection thereof,"
approved April 18, 1884, under the hand of Albert Foster, president
of the said the Port Reading Railroad Company, it was therein and
thereby certified that (statement of facts certified}?- a copy of which
1. The return referred to in the text issued was two thousand dollars, and
certified that " The amount of the that the business address of said corn-
authorized capital stock of the said pany was 227 South Fourth street, Phila-
Port Reading Construction Company was delphia, Pa., which is the address, and
one hundred thousand dollars, divided which is the office, of the Philadelphia
into two thousand shares, of which forty and Reading Railroad Company ; and it
shares were fully paid, and that none of is further certified that the address of
said shares were partially paid, and Albert Foster, the said president, is also
that the whole amount of capital stock at 227 South Fourth street, Philadelphia,
592 Volume 5.
6403. CORPORA TIONS. 6403.
return is hereto annexed, to which your informant refers; and it
further appears by the statement of the said Port Reading Railroad Com-
pany, filed in the department of state of said state 01 Xc:c Jersey, as
required by an act of the legislature approved IVJarch 8, 1877, and
which statement was filed on the fifth day of May, i8#i', a copy
of which statement is hereto annexed, to which your informant
refers, which certifies and states that (statement of fact \ certified).*
27. And your informant further informs your honor, that he is
informed and believes that certain capital stock, and all of the capital
stock of the said Port Reading Railroad Company was issued to and
nominally became the property of the said Port Reading Construction
Company, except the shares subscribed to and paid for by the original
incorporators, and that all of the said shares so issued to the Port
Reading Construction Company are held by the said corporation as
trustee for the Philadelphia and Reading Railroad Company, its officers
and agents, or some of them, and that all moneys that have been
paid to the Port Reading Construction Company, on account of the
work of constructing the said Port Reading railroad, have been paid
and disbursed directly or indirectly out of the funds of the Phila-
delphia and Reading Railroad Company, and that at the time the said
pretended lease was executed and delivered by the Central Railroad
Company of New Jersey to the Port Reading Railroad Company, the
said Central Railroad Company and its officers and directors had full
notice and knowledge of the fact that the Port Reading Railroad
Company was in reality the property of the Philadelphia and Reading
Railroad Company, and that the pretended organization and
existence of the said Port Reading Railroad Company was a mere
contrivance by which, under cover of the name of the Port Reading
Railroad Company, the Philadelphia and Reading Railroad Company
was to build, own and control the said corporation and the railroad
being constructed thereunder; and was the equitable owner and was
furnishing all the funds necessary for the organization, construction,
and management of the affairs of the said Port Reading Railroad
Company, and that it was because of such knowledge, and because of
the knowledge that the said Port Reading Railroad Company was
without means and without pecuniary responsibility, that the Central
Railroad Company of New Jersey absolutely refused to execute the
said indenture of lease, or to deliver the same, until the Philadelphia
and Reading Railroad Company, which it well knew to be the party
interested in and under the said lease as lessee, had first executed
the contract or guarantee hereinbefore set forth, and that it was
which is the office of the Philadelphia at Kaighn's Point Ferry House in
and Reading Railroad Company. 1 ' Camden, which said ferry house is pc-
1. The statement referred to in the text cupied and controlled by the Phila-
certified that "the officers of the said delphia and Reading Railroad Company
the Port Reading Construction Company and that the principal office of said
are, president, Albert Foster; secretary, Port Reading Construction Company is at
James M. Landis; treasurer, William No. 227 South Fourth street, PhiLi-
A. C/ntrch, each and all of whom are delphia, which is also the office of, and
officers and agents of the Philadelphia the building is owned and controlled
and Reading Railroad Company, and that by, the Philadelphia and Reading Rail-
the principal office of the company is road Company, as aforesaid.'
5 E. of F. P. 38. 593 Volume 5.
6403. CORPORATIONS. 6403.
never intended by either the Central Railroad of New Jersey, or the
Port Reading Railroad Company, or the Philadelphia and Reading Rail-
road Company, that the actual custody, enjoyment and management
of the corporate franchises, powers, privileges and property of the
Central Railroad Company of New Jersey, purporting to be demised
under the terms of the said lease, should be enjoyed, conducted and
managed by the said the Port Reading Railroad Company, but that by
force of the said contract or guarantee and tripartite agreement
executed by the said three corporations, as hereinbefore set forth, the
actual control, enjoyment and management of the corporate fran-
chises, privileges, powers and property of the Central Railroad Com-
pany demised in and by the said lease should be enjoyed by and
conducted and managed by the Philadelphia and Reading Railroad
Company; and it was intended by all the three corporate bodies
aforesaid to effect this transfer and the enjoyment and management
of the corporate franchise, powers, privileges and property of the
Central Railroad Company into the hands of the Philadelphia and
Reading Railroad Company, for the purpose of evading and com-
mitting a fraud upon the aforesaid act respecting the leasing of rail-
roads, approved May 2, 1885, and to avoid the necessity of securing
the sanction of the legislature of the state of New Jersey to the
leasing of the said corporate powers, privileges, franchises and
property of the Central Railroad Company of New Jersey to the
Philadelphia and Reading Railroad Company, which is a foreign
corporation.
28. And your informant shows, that he is informed and believes
that the said the Philadelphia and Reading Railroad Company imme-
diately took the possession of the said demised premises and now
holds the same, and is now conducting and operating the same as a
part of what it styles the Reading system, and it is now receiving unto
its own treasury, directly or indirectly, all the tolls for freight and pas-
sengers which are paid under the provisions of the aforesaid charter
and the supplements thereto of the Central Railroad of New Jersey,
and that the said the Philadelphia and Reading Railroad Company has
undertaken to and does disburse out of its own treasury, directly or
indirectly, all the rents reserved and moneys coming to be paid to
the Central Railroad of New Jersey in and by the terms of the afore-
said lease, and that the said the Port Reading Railroad Company in
fact takes no part in the performance of the covenants on its part in
said lease contained, except that its corporate name and title are used
therein, and that all the covenants in said lease contained are being
performed wholly by the Philadelphia and Reading Railroad Company, if
performed at all.
29. And your informant further informs your honor, that the Cen-
tral Railroad of New Jersey and the Port Reading Railroad Company
give out and pretend that the first named company was authorized
to execute and deliver the aforesaid indenture of lease demising .its
corporate franchises, powers, privileges and property to the latter
corporation by force of the provisions of an act entitled " An Act to
amend an act entitled ' An Act to authorize the formation of rail-
road corporations and to regulate the same,' approved April 2, 1873,"
594 Volume 5.
6403. CORPORA TIONS. 6403.
which act was approved March 1 1, 1880. And your informant informs
your honor, that the said original act of April 2, 1873, was and is an
act commonly called the general railroad law, and exclusively re-
lates to and concerns the organization and operation of railroad
corporations authorized thereby to be organized, and concerning
the acquisition of property by eminent domain and otherwise,
and the management and method of management of the affairs
of corporations organized pursuant to the provisions of said general
act, and has no reference whatever to, nor was it intended by the
legislature of New Jersey to operate upon, or to be effectual by way
of amendments, or otherwise, to alter, increase or change the powers
of railway corporations theretofore created by special charters granted
by the legislature of this state; and that the seventeenth section of
said original act did confer certain powers of leasing, merger and
consolidation upon railroad corporations incorporated under the pro-
visions of said act as between each other, but that said section did
not in anywise confer any additional powers upon or impose any
restrictions whatever upon or in anywise concern railroad corporations
incorporated under the authority of special acts or charters granted
by the legislature of New Jersey; and your informant in fact shows
unto your honor, that under the title as aforesaid of a supplement to
the original general railroad law, section seventeen was enacted and
substituted in and by said supplement, which purports on the face
thereof to confer upon any corporations incorporated under any of
the laws of this state at any time during the continuance of its
charter the power to lease its road or any part thereof to any cor-
poration or corporations of this or any other state, or to do both,
and such other company or companies were thereby authorized
to take such lease or to unite, consolidate as well as merge its stock,
property, franchises and roads with said company, or to do both, and
after such lease or consolidation the company- or companies so
acquiring said stock, property, franchises and road might use and
operate such road and their own road, or all or any of them, and
transport freight and passengers over the same, and take compensa-
tion therefor according to the provisions and restrictions contained
in said general railroad law, notwithstanding any special privilege
theretofore granted, or thereafter to be granted, to any other cor-
poration for the transportation of freight and passengers between
any point on the lines of said road or any other point within or with-
out this state, provided that nothing in said supplement contained
should authorize any railroad company, incorporated under a special
act of the legislature, to charge for transportation of freight or pas-
sengers over the roads constructed under said special act, more than
they might be authorized to charge by provisions of their special acts
of incorporation.
And your informant in fact shows unto your honor, that the said
act entitled "An Act to amend an act entitled 'An Act to authorize
the formation of railroad corporations and to regulate the same,' "
approved March n, 1880, is unconstitutional and void, in that it is in
direct violation of article IV, section 7, subdivision 4, of the Constitu-
tion of the State of New Jersey, which constitution ordains and
595 Volume 5.
6403. CORPORATIONS. 6403.
enacts in and by said subdivision as follows (setting out enactment*)!
And your informant informs your honor, that the said supplement to
or amendment of the general railroad law, which supplement was ap-
proved March u, 1880, purports by its title to embrace but one single
object, to wit, the amendment of the provisions of the act of April 2,
1873, for the formation of railroad corporations formed under and regu-
lated by the said act of April 2, 1873 ; and that the said supplement or
amendment can have no legal or valid operation to alter or amend
the charter of any railroad corporation, or to increase or restrict its
corporate powers, except only railroad corporations formed under
and pursuant to and regulated by the provisions of said general rail-
road law, whereas in and by the body of said act an object is declared
and embraced which is not expressed in the title thereof, and has no
proper relation whatever to the said general railroad law and the cor-
porations authorized to be formed and regulated thereby, but has re-
lation only to corporations formed and organized under and pursuant
to the special charters granted by the legislature of New Jersey to
such corporations respectively, in that it purports to authorize and
empower corporations formed, organized and regulated under and by
virtue of the provisions of said special charters, and to grant to such
corporations vastly increased powers in the alienation, disposition
and regulation of their corporate property and franchises, powers and
privileges, without disclosing or expressing in anywise in the title of
said last mentioned act of March n, 1880, any intent or purpose so
to do, and without embracing such object in the title of said act.
And your informant further informs your honor, that the purpose
and effect of said amendatory act of March n, 1880, was and is, after
such leasing or consolidation should have been effected, under and
pursuant to the powers thereto granted under and by said amendatory
act of March n, 1880, to (enumeration of powers granted}? and that
by any such lease,. merger or consolidation the special charters of any
corporation so leased, merged or consolidated would be pro tanto ab-
solutely repealed, and that such object so expressed and indicated in
the said amendatory act had no proper relation to the said general
railroad act, but is an object wholly different and having no relation
to the objects of the said general railroad law, and that such object
is not any object directly or indirectly expressed in the title of said
amendatory act of March n, 1880.
1. The constitutional enactment referred law, and to operate their respective
to in the text is as follows: "To avoid roads in conformity thereto, and to
improper influences which may result conduct the transportation of freight
from intermixing in one and the same and passengers and take compensation
act such things that have no proper re- therefor, according to the provisions
lation to each other, every law shall and restrictions contained in said gen-
embrace but one object, and that shall eral law, and to repeal and vacate every
be expressed in the title." special privilege, power and franchise
2. The powers granted under the contained in the charter of such leased
amendatory act referred to in the text or consolidated road or corporation,
were " to compel the lessee corpora- and to vest in such leased or consoli-
tion, or the merged and consolidated dated or merged road or corporation
corporation, after such lease, merger or from thenceforth only the corporate
consolidation, to exercise only the powers, privileges and franchises
powers and privileges and franchises granted and contained in the said gen-
conferred by the said general railroad eral railroad law."
596 Volume 5.
6403. CORPORATIONS. 0403.
And your informant shows unto your honor, that if the said act of
March n, 1880, is to be construed in conformity to the aforesaid
constitution of the state of New Jersey, it can only be construed to
be a constitutional act by construing the words (statement i>f con-
struction}?- and that to attempt to construe it otherwise would render
the said act of March n, 1880, violative of the aforesaid provision
of the constitution of the state of New Jersey.
30. And your informant further informs your honor that the said
the Central Railroad Company of Ne~ii> Jersey and the Port Reading Rail-
road Company also give out and pretend that by force of and pursu-
ant to the powers granted to the said the Central Railroad of New
Jersey in and by the third section of an act (title, date and substance
of acf)? to which said section of said supplement your informant
prays leave to refer; but your informant informs your honor, that
the said section does not purport to and cannot be construed to
empower the Central Railroad Company of New Jersey to demise or
let or otherwise alien in fee or for any term of years its corporate
powers, privileges, franchises and property to any other railroad
company, and that the true construction of the said act is to
authorize the Central Railroad Company to acquire the corporate
powers, privileges and franchises, and to operate other railroad cor-
porations located in the state of Neu> Jersey which connect with or
intersect the road of the said Central Railroad Company of New Jersey,
and that such power to acquire by lease, purchase of stock or con-
solidation is expressly limited to the leasing, purchasing or consoli-
dation of or with the railroad so connecting with or intersecting in
the state of New Jersey the road of the Central Railroad Company
of New Jersey.
31. And your informant in fact informs your honor, that the rail-
1. The construction referred to in the such purchase or consolidation shall
text as necessary to make the act con- not be made without the assent of three-
stitutional was by construing the words fourths in interest of the stockholders,
"' and it shall be lawful for any corpo- and provided also, if any stockholder
ration, incorporated under this act or or stockholders shall refuse his or
under any of the laws of this state, at their assent, or if by reason of absence-
any time during the continuance of or legal inability such assent cannot
its charter, to lease its road, or any be obtained, application may be made
part thereof, to any other corporations by said stockholder or stockholders
of this state, or to unite or consolidate,' within three months from the time that
etc., to refer exclusively to corporations, the purchase or consolidation is to take
whether acting as lessor or lessee in the effect, to one of the justices of the
execution of this power to lease, which supreme court of this state for the
have been incorporated either under appointment of three disinterested, im-
the general railroad law or some other partial persons, well acquainted with
general law of the state of New Jersey." the value of railroad property, as com-
2. The act referred to in the text was missioners, to appraise the value of the
entitled (title of act\ and enacted: shares held by said stockholder or
"That it shall be lawful for the said stockholders, provided the appraise-
company to purchase or lease or oper- ment shall, in no case, be less than the
ate any railroad which may be con- par value thereof; whereupon, such
nected with or intersect their road, or proceedings shall be had as are pro-
to guarantee the bonds of such com- vided under section seven of the act of
pany, or to consolidate the stock of incorporation, for the appraisement
such company with their own, on terms and taking of lands, so far as the same
to be mutually agreed upon, provided is applicable."
597 Volume 5.
6403. CORPORA TIONS. 6403.
roads of the Port Reading Railroad Company and the Central Railroad
Company of New Jersey, as authorized by law, do not in anywise con-
nect with or intersect the one with the other, but that their routes
are wholly separated and unconnected, and that (description of routes),
and that therefore the powers granted by the third section of the
aforesaid act cannot operate upon or grant powers to the said two
railroad corporations, and that the said indenture of lease is wholly
without authority derived from the said third section of the said
amendatory act.
32. And your informant informs your honor, that the said Port
Reading Railroad Company was authorized to file a route, and did file
a route, in the office of the secretary of state of the state of New
Jersey, at its beginning point connecting with the Delaware and
Bound Brook railroad, and that the said road was intended by the
organizer thereof, and has been in fact used, until the execution of
the aforesaid pretended lease, in connection with the Delaware and
Bound Brook Railroad Company and in opposition to and in com-
petition with the said railroad of the Central Railroad of New Jersey,
a certified copy of which route is hereto annexed and to which your
informant prays leave to refer.
33. And your informant further informs your honor, that the facts
that the Port Reading railroad was constructed by the Philadelphia
and Reading Railroad Company, and that the corporation thereunder
was formed and the stock subscribed and paid for by the Philadelphia
and Reading Railroad Company, and that said road was intended to
form and be used as a connecting road with the Philadelphia and
Reading Railroad Company through its leased line, the Delaivare and
Bound Brook railroad, was admitted by the Philadelphia and Reading
Railroad Company, and the officers thereof, in the annual report of
the president and directors of said road, presented by them to the
annual meeting of the stockholders of said corporation, in i890,
which report is an official report presented to the stockholders at
said meeting for the purpose of informing them of the actual situa-
tion of the railroads of the said Philadelphia and Reading Railroad
Company, and of the intended extension of the same for the conduct
of the business of the said corporation; in which said report the said
president and directors informed the stockholders of the said cor-
poration that (substance of report) 1
And your informant shows that the road so announced by the
said managers to the said stockholders, as having been surveyed,
and to be rapidly pushed forward to completion, for the purpose of
connecting with the Philadelphia and Reading system, and of trans-
porting thereon the coal of said company fo'r distribution in the
New York market, so economically and advantageously, was the
railroad of the Port Reading Railroad Company, and that the Port
Reading Railroad Company was formed and organized by the Phila-
delphia and Reading Railroad Company, through the instrumentality
of various of its officers, directors and employees, for the purpose of
1. The report of the president and di- of a new line of road to provide addi-
rectors referred to in the text was in re- tional facilities for the distribution of
lation to the promotion and extension anthracite coal at certain points.
598 Volume 5.
6403. CORPORATIONS. 6403.
connecting with the Delaware and Bound Brook railroad and running
thence to the waters of the Arthur Kill, in competition with the rail-
road of the Central Railroad of New Jersey, and for the purpose of
transportation over the same, by means of the connection aforesaid,
the product of the mines of- the Philadelphia and Reading Railroad
Company, owned and controlled through the Reading Coal and Iron
Company, and for the transportation of other coals and freight from
the various parts of the system of the said the Philadelphia and
Reading Railroad Company, from Bound Brook to the ^waters of the
Arthur Kill.
34. And your informant further informs your honor, that
A. A. McLeod, who at the time was the president, and still is the
president of the Philadelphia and Reading Railroad Company, and
who appears on the articles of association of the Port Reading Rail-
road Company, to which reference has been heretofore made, and a
copy of which is hereto annexed, to have been one of the associates
who formed the association of the Port Reading Railroad Company,
and subscribed to three hundred and eighty-eight shares out of the
four hundred shares subscribed in the formation of said corporation,
and who, as appears by the certified copy of the official report of the
Port Reading Railroad Company hereto annexed and referred to, was
elected on the fourth day of May, \W1, president of the Port Read-
ing Railroad Company, and was at the time of the execution and
delivery of the alleged indenture of lease aforesaid the president
both of the Philadelphia and Reading Railroad Company and of the
Port Reading Railroad Company, and as such president of said com-
panies purports to have executed and delivered the said alleged
indenture of lease as appears by the copy thereof hereto annexed;
and that at the time, and now, the same A. A. McLeod was also
president of the Philadelphia and Reading Coal and Iron Company,
which was then and is now entirely owned by the Philadelphia and
Reading Railroad Company; and the said McLeod was then and is now
president of the Philadelphia and Kaighns Point Ferry Company,
which is also controlled by lease, ownership of stock or otherwise
by the said Philadelphia and Reading Railroad Company; that * (aver-
ments as to other persons holding official positions in the several corpo-
rations). *
35. And your informant further shows unto your honor, that the
said alleged indenture of lease so purported to have been executed
and delivered by the Central Railroad Company of New Jersey to the
Port Reading Railroad Company was executed and delivered without
any power or authority whatever contained in the charter of either
of said corporations, or given and granted by any act of the legisla-
ture of the state of New Jersey to the said corporations or either of
them; that the said alleged indenture of lease was not executed and
1. The information continued after the * same time and is now the secretary of
in the text as follows: " IV. R. Taylor, the Philadelphia and Reading Railroad
who at the time of the execution of Company; that /. A. Swtigard" (row-
said alleged indenture of lease was tinuin% with similar averments as to
and still is the secretary of the Port other persons holding official positions at
Reading Railroad Company, was at the the same time in the several corporations).
599 Volume 5.
6403. CORPORA TIONS. 6403.
delivered by any lawful authority of the Central Railroad of New Jer-
sey, and is not, in fact, the act of the said corporation, but that the
said alleged indenture of lease was executed and delivered by the
officers who purport to have executed the same without any authority
whatever lawfully derived from the corporation, the Central Railroad
Company of New Jersey, but that the same was executed and delivered
by the said officers wholly by usurpation of powers, and that neither
by the charter nor by the by-laws of the corporation was any power
ever vested in the said officers to execute and deliver the said instru-
ment, nor was power granted any officer whatever of the said cor-
poration, and that in fact the stockholders of said corporation, who
alone had power to exercise the leasing power which such corporation
might possess at and before the execution of the said indenture of
lease, had never in anywise authorized the execution and delivery
thereof by the officer who assumed and usurped the power of execu-
tion and delivery of the same ; and your informant informs your honor,
that, as between the president and secretary of the said Central Rail-
road of 'New Jersey and the said corporation and the said Port Reading
Railroad Company, the said indenture of lease is wholly without
authority and voidable, and that as between the said corporations and
officers and the state of New Jersey the said indenture of lease is
wholly without authority and void, and that no authority was ever
vested by the state of New Jersey, the grantor of the corporate
powers, privileges and franchises of the Central Railroad Company of
New Jersey to the said officers of the said Central Railroad Company
of New Jersey to alienate in anywise by indenture of lease, mortgage
or deed the said corporate privileges, powers and franchises, or to
vest the said officers who actually executed said lease, or the board
of directors of said corporation, with any powers as agents to effectuate
a legal alienation of the said corporate powers, privileges, franchises
and property, and that the attempted alienation thereof by means of
said indenture of lease was wholly invalid and void for want of
authority from the state of New Jersey, or otherwise, to execute and
deliver the same.
36. Your informant further informs your honor, that the corporate
ana prerogative franchises, powers and privileges granted by the
state o f New Jersey to the Central Railroad Company of New Jersey in
and by its charter hereinbefore set forth, and the acts supplementary
and amendatory thereof, were granted expressly to the said corpora-
tion alone, and by the terms of said charter and acts supple-
mentary and amendatory thereof, said corporate and prerogative
powers, franchises and privileges were made assignable only for
especial purposes set forth in the said charter, to wit, by way of
mortgaging the same for the purpose- of raising money for the com-
pletion of the construction of the railroad of the said Central Rail-
road Company of 'New Jersey, and that the same were not assignable
for any other purpose whatsoever, but were special grants to the said
the Central Railroad Company of New Jersey alone, and that the said
Central Railroad Company alone could take and enjoy the same, and
discharge the public duties arising on its part by force of said grant
to the state of New Jersey, its inhabitants and the public; and fur-
600 Volume 5.
6403. CORPORATIONS. 6403.
ther, that even if by force of the provisions of the aforesaid act of
March n, 1880, the Central Railroad Company of New Jersey acquired
additional power of alienating by lease the said corporate and pre-
rogative powers, privileges and franchises, the only power of assign-
ing the said franchises so granted to said corporation by said act is
a special power to assign the same by one act in the exercise of such
power to another corporation or corporations, and that the Central
Railroad Company of New Jersey by such one act exhausted its powers,
and was not clothed by said act or by any other act of the legislature
of the state of Neiv Jersey with the power of imparting to the term
which it had demised in the execution of its power to the Port Read-
ing Railroad Company that assignable quality, and had no power to
demise or let its corporate and prerogative franchises, powers and
privileges to the assigns of said corporation, or to clothe its said
assignment with the power to reassign the same, but that the nonassign-
able quality of the original grant by the charter of the said corpora-
tion to said corporation remains unchanged, with power only to
execute the one act of assigning, if any such power was granted by
the act of 1880, or any other act of the legislature of the state of
New Jersey.
But your informant informs your honor, that in and by the said
alleged indenture of lease, executed by the Central Railroad Company
of New Jersey to the Port Reading Railroad Company, the said Central
Railroad Company undertook and assumed not only to assign, let and
demise to the Port Reading Railroad Company its prerogative fran-
chises and other franchises, powers and privileges to the Port Read-
ing company, but to let and demise the same to the Port Reading
company, its successors and assigns, and the said indenture of lease
thus assumed to exercise a power of assignment with which the state
of New Jersey had never clothed it, and that the utmost that the said
indenture of lease could accomplish was to assign the franchises and
privileges of the Central Railroad Company to the Port Reading Rail-
road Company alone, in whose hands said franchises and privileges, if
well assigned, would remain and do remain absolutely unassignable,
no power thereto having been granted by the state of New Jersey.
37. And your informant further informs your honor, that in and
by the said alleged indenture of lease the said the Central Railroad
Company of New Jersey affected to and usurped the power to let and
demise to the Port Reading Railroad Company the corporate rights,
powers and privileges of a large number of other railway corporations
nominated in the said indenture of lease; and as to the said railway
corporations so nominated in said indenture of lease, your informant
informs your honor, that a large number of them are existing sepa-
rate corporations, if not all of them, of which your informant has no
accurate knowledge, nor the means of obtaining such knowledge, but
your informant charges that the railways nominated in said lease,
and known as (names of railroads), are separate and existing cor-
porations, and that the Central Railroad of Neu> Jersey has no other
power in and over their respective properties or franchises than the
power that it derives either as the lessee of the said several railroad
corporations or as the owner of all or a majority of their respective
601 Volume 5.
6403. CORPORA TIONS. 6403.
capital stock, and that if the said act of March u, 1880, or any other
act of the legislature of the state of New Jersey, does empower the
said several railroad corporations, or any of them, to demise and let
its corporate and prerogative powers, privileges and franchises, such
power to demise and let exists in and is conferred upon the said sev-
eral corporations alone, and is a special power, and if they have ex-
ercised the same by demising and letting their franchises, powers and
privileges to the Central Railroad of New Jersey, that by so demising
and letting the same their power to demise and let is exhausted, and
that such power does not extend to or vest the Central Railroad Com-
pany of New Jersey with any power to further let and demise the
same or any of their respective prerogative and corporate powers,
privileges and properties, and that the said indenture of lease exe-
cuted by the Central Railroad Company of New Jersey to the Port Read-
ing Railroad Company is wholly ultra vires and a usurpation of cor-
porate powers on the part of the Central Railroad Company of New
Jersey, and that the said indenture of lease is wholly ultra vires and
void as to the state of New Jersey, and should be by decree of this
court set aside and for nothing holden.
To the end, therefore, that inasmuch as your informant is without
adequate relief in the premises, save by the aid and interposition of
this honorable court, said defendants and their confederates, when
discovered, may full, true and distinct answer make under their
respective common and corporate seals, on the oaths and affirmation
of their respective presidents and secretaries to all and every the
matters hereinbefore informed and averred as fully as if the same
were now here again repeated, and they particularly interrogated
thereto, paragraph by paragraph, and that the aforesaid alleged
indenture of lease made, executed and delivered by the Central Rail-
road Company of New Jersey to the Port Reading Railroad Company
may be decreed to be ultra vires and void and a usurpation of cor-
porate franchises on the part of the said corporations respectively,
and that the said lease may be decreed to be absolutely null and
void, and be set aside and for nothing holden; and that the said tri-
partite agreement between the Central Railroad Company of New
Jersey, the Port Reading Railroad Company, and the Philadelphia and
Reading Railroad Company may be decreed to be ultra vires, fraudu-
lent and void, and that the said indenture of lease and tripartite
agreement, and all other agreements, leases or other instruments
executed and delivered between the said parties under which the
combination aforesaid was effected, and the possession, management
and control of the said the Central Railroad Company of New Jersey,
and its corporate powers, privileges and franchises have come into
the possession, control and management of the Philadelphia and
Reading Railroad Company, may be decreed to be ultra vires, fraudu-
lent and void, and tending to create a monopoly of the anthracite
coal trade and to stifle competition between the said corporations,
and to arbitrarily increase the price of anthracite coal to the inhabi-
tants of the state of New Jersey; and that the said the Philadelphia
and Reading Railroad Company, and the Port Reading Railroad Com-
pany, may be decreed to surrender and return to the Central Railroad
602 Volume 5.
6403. CORPORATIONS. 6403.
Company of New Jersey the possession of all its railroads, corporate
franchises, powers and privileges, and to cease forever hereafter from
controlling or intermeddling with, in anywise, the possession, exer-
cise, management and control of any of the said railroads and cor-
porate property, franchises, powers and privileges of the Central
Railroad Company of New Jersey, and that all the said instruments of
leases, tripartite agreements, and other instruments whatever, under
which, or by force of which, the Philadelphia and Reading Railroad
Company assumes to exercise any such possession, management, con-
trol or enjoyment of the corporate property, power, privileges and
franchises of the Central Railroad Company of New Jersey may be
decreed to be ultra vires, fraudulent and void, and be set aside and
for nothing holden, and that the said corporate defendants may be
decreed forever hereafter to cease from all combinations arbitrarily
increasing, or tending to increase, the price of coal to the inhabitants
of the state of New Jersey under any instrument or pretenses what-
ever, either by arbitrarily lessening the production of coal or by
arbitrarily fixing the price of anthracite coal or the transportation of
the same, when produced, or in any other wise whatsoever; and that
your informant may have such other and further relief in the prem-
ises as the nature of the case may require, and may be agreeable to
equity and good conscience.
May it please your honor to grant unto your informant not only
the state's writ of injunction issuing out of and under the seal of this
honorable court, to be directed to the said the Central Railroad Com-
pany of New Jersey, the Port Reading Railroad Company and the
Philadelphia and Reading Railroad Company, enjoining and restraining
them, their officers and agents, directors and employees, and each of
them, from doing or continuing any act whatever under and by virtue
of the terms, covenants and conditions contained and set forth either
in the said alleged indenture of lease or in the said tripartite agree-
ment, or under and by virtue of any other instrument which may
have been executed and delivered between the said companies, or
between them and any other parties whereby under, or under color
of which, the said the Philadelphia and Reading Railroad Company
pretends, or the Port Reading Railroad Company pretends, to have
acquired or be empowered to possess, manage or in anywise control
the corporate franchises, powers, privileges or property of the Cen-
tral Railroad Company of New Jersey, its officers and directors, and
that the said Central Railroad Company of New Jersey, its directors,
officers and agents, be directed to retake possession of, and exercise,
manage and control all the corporate powers, privileges and fran-
chises granted to the said corporation, and to manage and conduct
the same under the sole authority of the said the Central Railroad
Company of New Jersey, and also to enjoin and restrain the said
defendant corporations, their officers and agents, from doing any and
all acts, and making any arrangements or combinations, by contract
or otherwise, having for their object, effect or result, either to limit
or diminish the production of anthracite coal, or arbitrarily to
increase the price thereof, or to prevent competition among them in
the production, transportation and sale of anthracite coal, and from
603 Volume 5.
6404. CORPORA TIONS. 6404.
doing any other act or thing, or making any arrangements or agree-
ments to do the same in and about the business of mining, producing
and transporting anthracite coal which shall tend to a monopoly in
the same, or arbitrarily to increase the price of anthracite coal to the
inhabitants of the state of New Jersey, and that the said defendants,
their officers and agents, and each and every of them, in the mean-
time and until the further order of the court in the premises, desist
and refrain from operating their railroads in the state of New Jersey,
in such manner as to diminish competition in the trade in anthracite
coal, and desist and refrain from making, continuing, or acting under
any arrangements or combinations with each other, by contract or
otherwise, having for their object, effect, or result, either the creation
of an artificial scarcity of such coal, by limitation or diminution of
the supply thereof, despite the natural laws of demand and supply,
or having for their object, effect or result the arbitrary increase of
the price of such coal, or the prevention of existing or future legiti-
mate competition in the production, transportation, or sale of such
coal, and from doing any other act or thing in and about the business
of mining, producing and transporting anthracite coal which shall
tend to a monopoly of the same, or arbitrarily to increase the price
of such coal to the inhabitants of the state of New Jersey; but also
the state's writ of subpoena, to be directed to the said the Central
Railroad Company of New Jersey, the Port Reading Railroad Company,
and the Philadelphia and Reading Railroad Company, commanding
them and each of them at a certain day and under a certain penalty
therein to be expressed, to be and appear before your honor in this
honorable court, then and there to answer the premises, and to stand
to and abide by and perform such decree therein as to your honor
shall seem meet, etc.
John P. Stockton, Attorney-General.
( Verification^-
(b) Order to Show Cause why Injunction should not Issue.
Form No. 6404.*
( Title of cause ) Order to Show Cause why Injunction should
as in Form No. 64,02.) \ not Issue.
Upon reading the information of the attorney-general of the state
of New Jersey, on the behalf of said state in this cause, and the ex-
hibits and affidavits thereto annexed, and on motion of John P. Stock-
ton, attorney-general, it is on this thirty-first day of May, i89, ordered
that the defendants, the Central Railroad Company of New Jersey, the
Port Reading Railroad Company, and the Philadelphia and Reading
Railroad Company, show cause before the chancellor, at the state-house
in Trenton, on the fifteenth day of June next, at/<?# o'clock in the fore-
noon, or as soon thereafter as counsel can be heard, why an injunction
should not issue according to the prayer of the information, among
1. Consult the title VERIFICATIONS. v. Central R. Co., 50 N. J. Eq. 52, 489.
2. This order to show cause why an in- See supra, note 3, p. 568.
junction should not issue is copied For forms of orders, generally, con-
from the record in the case of Stockton suit the title ORDERS, ETC.
604 Volume 5.
6404. CORPORATIONS. 6404.
other things in substance enjoining and restraining them, their officers
and agents, directors and employees, and each of them, from doing or
continuing any act whatever under and by virtue of the terms, cove-
nants and conditions contained and set forth in the indenture of lease
or in the said tripartite agreement of February 12, i8#,?, alleged in
said information, or under and by virtue of any other instrument
which may have been executed and delivered between the said com-
panies, or between them and any other parties, whereby under, or
under color of which, the said the Philadelphia and Reading Railroad
Company pretends or the Port Reading Railroad Company pretends, to
have acquired or be empowered to possess, manage or in anywise
control the corporate franchises, powers, privileges or property of the
Central Railroad Company of New Jersey, its officers and directors,
and commanding the said Central Railroad Company of New Jersey to
retake possession of and exercise, manage and control all the cor-
porate powers, privileges and franchises granted to the said corpora-
tion, and to manage and conduct the same under the sole authority
of the said the Central Railroad Company of New Jersey; and also
enjoining and restraining the said defendant corporation, its officers
and agents, from. doing any and all acts, and making any arrange-
ments or combinations, by contract or otherwise, having for their
object, effect or result either to limit or diminish the production of
anthracite coal, or arbitrarily to increase the price thereof, or to
prevent competition among them in the production, transportation
and sale of authracite coal, and from doing any other act or thing, or
making any arrangements or agreements to do the same in and about
the business of mining, producing and transporting anthracite coal,
which shall tend to a monopoly of the same, or arbitrarily to increase
the price of coal to the inhabitants of the state of New Jersey. And
it is further ordered that the said defendants, their officers and agents,
and each and every of them, in the meantime and until the further
order of the court in the premises, desist and refrain from operating
their railroads in the state of New Jersey, in such manner as to
diminish competition in the trade in anthracite coal, and desist and
refrain from making, continuing or acting under any arrangements
or combinations with each other, by contract or otherwise, having
for their object, effect or result either the creation of an artificial
scarcity of such coal, by limitation or diminution of the supply
thereof, despite the natural law of demand and supply, or having for
their object, effector result the arbitrary increase of the price of such
coal, or the prevention of existing or future legitimate competition
in the production, transportation or sale of such coal, and from doing
any other act or thing in and about the business of mining, producing
and transporting anthracite coal which shall tend to a monopoly of
the same, or to arbitrarily increase the price of such coal to the
inhabitants of the state of New Jersey.
And it is further ordered that a copy of the said information, ex-
hibits and affidavits, together with a copy of this order, which copies
need not be certified, be served on the said defendants, respectively,
within five days from the date of this order.
Alex. T. McGill, C.
605 Volume 5.
6405. CORPORATIONS. 6405.
(/) Order for Injunction.
Form No. 6405.'
(Title of cause ) r\ i t T
as in Form No. 6402.) \ Order for In J^^ion.
Application having been made by John P. Stockton, attorney-gen-
eral, on the thirty-first day of May last past, by information filed on
that day, for injunction, according to the prayer of said information,
and an order having been thereupon made that the said defendants,
the Central Railroad Company of New Jersey, the Port Reading Rail-
road Company, and the Philadelphia and Reading Railroad Company,
show cause before the chancellor on the fifteenth day of June then next,
why the injunction asked for should not issue; and the hearing of
the said order to show cause having been continued until the nine-
teenth day of July last past, at which time the matter therein involved
came on to be heard upon the said information and the exhibits and
affidavits annexed thereto, and the answers of the defendants and
affidavits respectively annexed thereto, and upon limited proofs which
had been taken under an order of this court in conformity with the
provisions of rule one hundred and twenty-one; and .said pleadings and
proofs having been read and the said attorney-general and Mr.
Frederick IV. Stevens, of counsel with the informant, and Messrs.
Benjamin Williamson, Samuel Dickson and Robert W. DeForrest, of
counsel with the Central Railroad of New Jersey, and Messrs. Thomas
N. McCarter, John G. Johnson and John R. Emery, of counsel with the
Philadelphia and Reading Railroad Company, and the Port Reading Rail-
road Company, having been heard from thence from day to day, unto and
including the twenty-second day of July aforesaid, and the chancellor
having considered the said pleadings and the said affidavits and other
proofs, and the arguments of counsel, orally and by briefs subsequently
submitted, and being of opinion therefrom, that the indenture of lease
and tripartite agreement set out and admitted in the pleadings bear-
ing date February 12, \W2, were made without legal sanction and in
contravention of law; and being of opinion also, that the effect of
the said lease and tripartite agreement is to partially destroy com-
petition in the production and sale of anthracite coal, a staple com-
modity of this state, and therefore is a corporate excess of power
which tends to monopoly and the public injury, and for that reason
that the further carrying into effect said lease and agreement and
the terms thereof in other form, or in disguise of any kind, may be
restrained at the suit of the informant.
It is thereupon, on this twenty-ninth day of August, in the year one
thousand eight hundred and ninety-two, ordered that an injunction do
issue against the said defendants, their officers and agents, and each
of them, restraining and prohibiting them, and each of them, from
further performing and carrying into effect the aforesaid lease and
tripartite agreement; and further restraining and prohibiting the
1. This order for injunction is copied For forms of orders, generally, con-
from the record in the case of Stockton suit the title ORDERS, ETC.
v. Central R. Co., 50 N. J. Eq. 52, 489.
See supra, note 3, p. 568.
606 Volume 5.
6406. CORPORATIONS. 6406.
Port Reading Railroad Company and the Philadelphia and Reading
Railroad Company, their officers and agents, from continuing to con-
trol the roads, property and franchises of the Central Railroad Com-
pany of New Jersey, and from in any wise further intermeddling
therewith; and further restraining and prohibiting the Central Rail-
road Company of New Jersey, its officers and agents, from permitting
the Port Reading Railroad Company or the Philadelphia and Reading
Railroad Company to use, control or operate its road, property and
franchises; and enjoining and commanding the said the Central
Railroad Company of New Jersey, its officers and agents, to again
resume control of all its property and franchises and the performance
of all its corporate duties; and further restraining and prohibiting
the defendants from conjointly operating their railroads in the state
of New Jersey in such manner as to diminish competition in the
trade in anthracite coal, and from making, continuing or acting
under any arrangements or combinations with each other, by con-
tract or otherwise, having for their object, effect or result, the con-
trol and operation of the Central Railroad Company of N civ Jersey, its
roads, property or franchises by the other defendants, or either of
them, and thereby effecting either the creation of an artificial
scarcity of such coal, by limitation or diminution of the supply
thereof, despite the natural law of demand and supply, or the
arbitrary increase of the price of such coal, or the prevention of
existing or future legitimate competition in the production, transpor-
tation or sale of such coal.
And it is further ordered that the attorney-general have leave to
serve the said injunction upon the said corporations, and upon the
officers and directors thereof, without this state, in case such officers
and directors cannot be found within this state.
Alex, T. McGill, C.
(</) Injunction.
Form No. 6406.'
New Jersey, to wit: The state of New Jersey to The Central Rail-
road Company of New Jersey, The Port Reading Railroad Company,
The Philadelphia and Reading Railroad Company, and their respective
officers, directors, servants and agents, and each and every of them,
Greeting:
Whereas, it hath been represented to us in our Court of Chancery,
on the part of John P. Stockton, attorney-general of the state of
New Jersey, on the behalf of said state, informant, that he has lately
exhibited his information against you the said The Central Railroad
Company of New Jersey, the said The Port Reading Railroad Company,
and the said The Philadelphia and Reading Railroad Company, defend-
ants, to be relieved touching the matters set forth in the said
information.
1. This injunction is copied from the For forms in injunction proceedings,
record in the case of Stockton v. Central generally, consult the title INJUNCTIOXS.
R. Co., 50 N. J. Eq. 52, 48q. See supra,
note 3, p. 568.
607 Volume 5.
6406. CORPORATIONS. 6406.
We, therefore, in consideration of the premises, and of the par-
ticular matters set forth in the said information, do strictly enjoin
and command you the said The Central Railroad Company of New
Jersey, the said The Port Reading Railroad Company, the said The
Philadelphia and Reading Railroad Company, your respective officers,
servants and agents, and all and every the persons before mentioned,
and each and every of you, under the penalty that may fall thereon,
that you, and each and every of you, do absolutely desist and refrain
from further performing and carrying into effect the lease made the
twelfth day of February, A. D. i8#, by and between the Central
Railroad Company of New Jersey and the Port Reading Railroad Com-
pany, and the guarantee or tripartite agreement bearing date the day
and year last aforesaid, and made by and between the Central Rail-
road Company of New Jersey, the Philadelphia and Reading Railroad
Company and the Port Reading Railroad Company; and that you
the Port Reading Railroad Company and the Philadelphia and
Reading Railroad Company, your and each of your officers and
agents, do also absolutely desist and refrain from continuing to
control the roads, property and franchises of the Central Railroad
Company of New Jersey, and from in any wise further intermeddling
therewith ; and that you the Central Railroad Company of New Jersey,
your officers, directors and agents, do absolutely desist and refrain
from permitting the Port Reading Railroad Company or the Phila-
delphia and Reading Railroad Company to use, control or operate your
road, property and franchises; and that you the said The Central
Railroad Company of New Jersey, your officers, directors and agents,
do again forthwith resume control of all your property and fran-
chises, and the performance of all your corporate duties; and further
that you the said The Central Railwad Company of New Jersey, the
said The Port Reading Railroad Company, and the said The Phila-
delphia and Reading Railroad Company, your officers, directors, ser-
vants and agents, do absolutely desist and refrain from conjointly
operating your respective railroads in the state of New Jersey in
such manner as to diminish competition in the trade in anthracite
coal, and from making, continuing or acting, under any arrangements
or combinations with each other by contract or otherwise, having for
its object, effect or result the control and operation of the Central
Railroad Company of New Jersey, its roads, property or franchises by
the other defendants, the Port Reading Railroad Company, or the
Philadelphia and Reading Railroad Company, or either of them, and
thereby affecting either the creation oif an artificial scarcity of such
coal or by a limitation or diminution of the supply thereof, despite
the natural law of demand and supply, or the arbitrary increase of
the price of such coal, or the prevention of existing or future
legitimate competition in the production, transportation or sale
of such coal, until our said court shall make other order to the
contrary.
Witness: Alexander T. McGill, our chancellor, the thirtieth day of
August, in the year of our Lord one thousand eight hundred and
ninety-two.
Allan L. McDermott, Clerk.
608 Volume 5.
6407.
CORPORA TIONS.
6407.
(3) To RESTRAIN OPERATION OF CONSOLIDATED COMPETING
RAILROAD.
Form No. 6407.'
In the Supreme Judicial Court.
Middlesex, ss.
Between
The Boston and Lowell Railroad Corporation,
a corporation duly incorporated and existing
under the laws of the Commonwealth of
Massachusetts, plaintiff,
and
The Salem and Lou'ell Railroad Company,
The Boston and Maine Railroad, and The
Lowell and Lawrence Railroad Company,
all being corporations duly incorporated and
existing under the laws of the Commonwealth
of Massachusetts, defendants.
Bill of Complaint.
I. By an act passed on the sth of June, 1830 (Massachusetts Statutes,
1830, c. 4), a charter of incorporation was granted to the plaintiffs by
1. This bill of complaint is based upon
facts set out in the case of Boston, etc.,
R. Corp. v. Salem, etc., R. Co., 2 Gray
(Mass.) i. To this bill each of the de-
fendant corporations filed a general
demurrer, which, upon consideration
by the court, was overruled and a tem-
porary injunction granted as prayed
for, the court holding that by the
consolidation of the defendant com-
panies a competing road was estab-
lished which was in violation of the
contract in the plaintiff's charter that
it was to be the only railroad between
certain points for thirty years.
For formal parts of bills in equity,
generally, consult the title BILLS IN
EQUITY, vol. 3, p. 417; of complaints
and petitions, consult the title COM-
PLAINTS, vol. 4, p. 1019.
Temporary Injunction to Restrain Opera-
tion of Consolidated Competing Road. In
Boston, etc., R. Corp. v, Salem, etc., R.
Co., 2 Gray (Mass.) I, upon the appli-
cation therefor the court issued an in-
junction to continue in force while the
suit was pending or until further
order of the court, which injunction,
omitting the formal parts, was as fol-
lows: "to enjoin and restrain the said
defendant corporations, and each of
them, and their several officers, agents
and servants, and all persons in the
employment of the said defendant
corporations, or either of them, under
the penalty of thirty thousand dol-
lars, against carrying, transporting or
conveying any persons, or property of
any kind, by one continuous line of
conveyance by railroad cars proceeding
from Lowell, or from any part within
five miles of the northern terminus of
the Boston and Lowell railroad, and
from thence to Boston in the county of
Suffolk, or to Charlestown, Cambridge or
Somerville in the county of Middlesex,
or from said Boston, Cambridge, Charles-
town, or Somerville, to said Lowell, or
any point within five miles of the
northern terminus of the Boston and
Lowell railroad, by one continuous line
of conveyance by railroad cars, between
the said termini; and from doing any
act or acts toward the effecting or ac-
complishing such transportation of
persons or property, by connecting to-
gether, or using in connection certain
sections of their respective railroads,
as follows, namely: The section of the
Boston and Maine railroad lying be-
tween Boston and its intersection with
the Salem and Lowell railroad at Wil-
mington; that section of the Salem and
Lowell railroad which lies between the
last named point and the intersection
of said Salem and Lowell railroad with
5 E. of F. P. 39.
GO'J
Volume 5.
6407.
CORPORA TIONS.
6407.
the legislature of this commonwealth (which was set forth at length in the
bill), and by the first section of which John F. Loring and others
named, their associates, successors and assigns, were made a body cor-
porate, under the name of the Boston and Lowell Railroad Corporation,
with power to sue and be sued, and have a common seal, and were
vested with all the powers, privileges and immunities which were
or should be necessary to carry into effect the purposes and objects
of this act, as hereinafter set forth. And the said corporation were
authorized and empowered to locate, construct and finally complete
of said termini, as fare or compensa-
tion for the passage of any person from
one of the said termini to the other, or
by selling a ticket for the entire pas-
sage, or by taking, at one and the
same time and place, payment for said
tickets on the several sections of the
said respective railroads of the differ-
ent corporations, or by taking payment
in a car, on one section, for a passage
on any other section or sections of the
same line.
4th. Or by advertising any notice, in
any newspaper, pamphlet, written or
printed paper, card, circular letter, or
by printing or posting up, or causing
to be printed or posted up, any hand-
bill, placard, or other like paper, giving
notice that passengers or merchandise
may be carried and transported by
railroad through from one of the said
termini to the other by one continuous
line, or that a passage may be had
from one of said termini to the other
without change of cars and without
stoppage or detention at the said several
points of intersection.
5th. Or by painting, or in any way
placing upon their cars or any or either
of them, the words ' Boston and
Lowell' or ' Lowell and Boston,' or by
continuing the same or similar words
on their said cars or any one of them,
or in any other way giving informa-
tion that a direct and uninterrupted
passage by railroad may be had be-
tween said termini; or from entering
into any other arrangement, or doing
any other act, the intent and purpose
of which maybe to effect a continuous
line of travel by railroad for passen-
gers and merchandise in a direct and
uninterrupted course between said
termini; or from agreeing to use, or
actually using, the sections or any sec-
tions, constituting parts of the lines of
their respective railroads, in such man-
ner as to form a continuous line of travel
or transportation of persons or prop-
erty from the one to the other of the
said termini."
the Lowell and Lawrence railroad in
Tewksbury; and that section of the
Lowell and Lawrence railroad between
said last mentioned place of intersec-
tion and its termination in Lowell; or by
any variation or alteration of said
places of junction and intersection, or
in any other mode using any sections
of said several railroads in such man-
ner as to form a continuous line of con-
veyance by railroad of persons or
property between the said termini.
And the said three defendant corpora-
tions, their officers, agents, servants,
and all persons employed by them, are
enjoined and prohibited from using or
employing any of the means hereto-
fore stated towards the formation, es-
tablishment or maintenance of any
such continuous line of conveyance of
persons or property, in any of the
modes following, .to wit:
ist. By any agreement or under-
standing between themselves, to the
effect that either of said corporations
shall have the use of the cars of either
of the other of said corporations, on
its own section of railroad, in such a
manner as to form one continuous and
uninterrupted transportation of per-
sons or passengers over the said sec-
tions of said different railroads, or any
two of them, without change of cars or
loss of time, or either of them.
2d. Or by taking passengers at one
of the said termini to be carried or
transported to the other of said termini,
without change of cars at the places
where any one of the said sections of
the said several railroads intersects
with either of the other of the said sec-
tions; or in any other mode from en-
gaging, procuring, employing and
using any car or cars, at their common
expense or otherwise, for the convey-
ance of persons or property, for run-
ning and passing upon or over the said
sections of their respective railroads
without change of cars, from either of
said termini to the other,
i 3d. Or by receiving money at either
610
Volume 5.
6407. CORPORATIONS. 6407.
a railroad at or near the city of Boston, and thence to Loivell in the
county of Middlesex, in such manner and form as they should deem
to be most expedient; and for -this purpose the said corporation were
authorized to lay out their road, at least four rods wide through the
whole length; and for the purpose of cuttings, embankments, and
stone and gravel, may take as much more land as may be necessary
for the proper construction and security of said road.
II. The plaintiffs further allege that said act of incorporation was
duly accepted, and plaintiffs became a corporation, possessed of all
the rights, powers and privileges conferred by said charter; that
subsequently certain other acts, in addition to said first named act,
were passed by the legislature (copies of which were annexed to the bill};
that the same were duly accepted by the plaintiffs, with the exception
of the second proviso of the Massachusetts Statutes (1836), chapter
146; and that thereby a contract, conformable to the terms of said
charter, and of the acts thus accepted, was created between the com-
monwealth and the plaintiffs.
III. The plaintiffs further allege, that, confiding in said acts and the
privileges therein granted to them, they proceeded at great cost and
expense to construct and complete the said railroad, and had ever
since maintained and employed the same for the transportation of
persons and property, and had derived therefrom just and reasonable
gains and profits; and in all respects conformed to the provisions
and requirements of said acts, which by them were to be kept and
performed; and were consequently entitled to enjoy the privileges
and receive the tolls in said acts granted to them, and especially to
enjoy the privileges granted in the twelfth section of their, said
charter, namely that no other railroad should, within thirty years
from and after the granting of their said charter, be authorized to
be made, leading from Boston to Charlestown or Cambridge to Lowell,
or from either of said places to any place within five miles of the
northern termination of their said road; and also to enjoy the right
of conveying and transporting persons and property by railroad from
Boston and Charlestown to Lou>ell, and from Lowell to Boston and
Charleston n, without hindrance, competition or interruption from
any other corporation or corporations, authorized to own a railroad
between other places, by making use of their railroads, or portions
of their lines of railroad, to establish a nearly parallel railroad com-
munication from Lowell to Boston or Charlestown, and from Boston or
Charlestown to Lowell, and with a terminus in Lowell, or within Jive
miles of the terminus of the plaintiffs' road in Lowell.
IV. And the plaintiffs further allege, that by Massachusetts Stat-
utes (1845), chapter 159, which was duly accepted by the Boston and
Maine Railroad and the Boston and Maine Railroad Extension Company,
said two corporations, previously established by the laws of this com-
monwealth, were united, and became one corporation, under the name
of the Boston and Maine Railroad, and the owners and proprietors of
the railroad known as the Boston and Maine railroad, constructed and
leading from Boston into the state of Maine and running through the
town of Wilmington, and having its southern terminus in Boston.
That by Massachusetts Statutes (1846), chapter 157, certain persons
611 Volume 5.
6407. CORPORATIONS. 6407.
were made a corporation by the name of the Lowell and Andover
Railroad Company, with powers to construct a railroad from Lowell
to a point in or near Andover, and to enter with their road upon a
part of the Boston and Lowell railroad in Lowell, and use the same;
that said act was duly accepted and said road built and constructed
by said corporation from Lou>ell to Andover; and that the terminus
of said road in Lowell was constructed within half a mile of the
northern termination of the plaintiffs' road; and that by Massachu-
setts Statutes (1848), chapter 14, which was accepted by said cor-
porations, it was provided that it should take and be known by the
name of the Loivell and Lawrence Railroad Company ; that by Massa-
chusetts Statutes (1848), chapter 223, certain persons were made a
corporation by the name of the Salem and Lowell Railroad Company;
that said act was duly accepted, and said corporation constructed
their railroad from a point at or near Salem to a point on said Lou'ell
and Lawrence railroad, in the town of Tewksbury, where they effected
a junction of their said road with the Lowell and Lawrence railroad,
and used the track of the Lou'ell and Lawrence Railroad Company to
their terminus in Lowell, and in so doing constructed their railroad
through the town of Wilmington, and there intersected the Boston and
Maine railroad.
V. And the plaintiffs further allege that by means of the said
junction of the road of the Lowell and Lawrence Railroad Company
with the road of the Salem and Lmvell Railroad Company at Tewks-
bury, and by the intersection of the said last named road with the
road of the Boston and Maine Railroad at Wilmington, the rail and
other material of a line of railroad communication, nearly parallel
with the plaintiffs' road, was created between Lowell and Boston,
through Charlestown, only about one mile and six-tenths of a mile longer
than the plaintiffs' road, and at no point more than three miles and
one-third of a mile distant therefrom, having one terminus in Lmvell
within half a mile of the northern terminus of the plaintiffs' road,
and a station-house for passengers in Charlestown, and the southern
terminus in Boston a half a mile nearer to the center of business in
Boston than the southern terminus of the plaintiffs' road, by which
line passengers and property could be conveyed and transported
from Lowell to Charlestown or Boston, and from Boston or Charlestoum
to Lowell. But the plaintiffs well hoped that no such use of said
road, or portions thereof, would be made or suffered by the defend-
ant corporations, and that the plaintiffs would be permitted peace-
ably, without interruption, molestation or interference, to have and
enjoy the profit, benefit and advantage secured and intended to be
secured to them by their act of incorporation, and the acts in addi-
tion thereto, of transporting passengers and property from Boston to
Lowell, and from Charlestown to Lowell, and from Lowell to Boston,
and from Lou>ell to Charlestoum, and free from the competition of any
other railroad, authorized to be made by the commonwealth, extend-
ing from Boston, Charlestown or Cambridge, to any place within five
miles of the northern terminus of the plaintiffs' road; and free from
the competition of any other corporation or corporations, authorized
by the legislature to run railroads between other places and to inter-
612 Volume 5.
6407. CORPORATIONS. 6407.
sect and to unite with each other, but making use of their roads or
portions thereof, for establishing a railroad between Boston and
Lowell, nearly parallel with the plaintiffs' road, and for transporting
passengers from Boston and Charlestown to Lowell, and from Lowell
to Boston and Charlestown on' the railroad thus established.
VI. And the plaintiffs further allege that the defendants, combin-
ing, colluding and confederating together to deprive the plaintiffs of
the reasonable gains and profits which they were entitled to receive
from the transportation of passengers and property over their road,
and to hinder them in the enjoyment of the rights and privileges to
which they were entitled by virtue of their said contract with the com-
monwealth, and especially under the twelfth section of their charter,
did enter into a certain mutual agreement, understanding or
arrangement to convey, and cause to be conveyed, passengers and
property over portions of their said roads, by means of said junc-
tions and intersections, from Boston and Charlestown to the terminus
of the Lowell and Lawrence railroad in Lowell, and from Lowell to
Boston and Charlestown, and by causing cars, and trains of cars, to
run over said portions of each of their said roads at such times that
passengers could exchange out of the cars of the Salem and Lowell
Railroad Company into the cars of the Boston and Maine Railroad, and
from the cars of the last mentioned railroad company into the cars
of the Salem and Lowell Railroad Company, at said intersection at
Wilmington; and in pursuance of said agreement and understanding,
did, on or about the twenty-eighth day of June, i&,51, commence trans-
porting, and had ever since continued to transport passengers and
property over their said line of road as aforesaid, from Boston to
Charlestown to Lowell and from Lowell 'to Boston and Charlestown, using
therefor the road of the Lowell and Lawrence Railroad Company from
its terminus in Lou'ell to the place of its junction with the road of the
Salem and Loutell Railroad Company in Tewksbury, and thence using
therefor the road of the last mentioned company to its intersection
with the road of the Boston and Maine Railroad in Wilmington, and
thence using the said road of the last mentioned corporation; and for
the purpose of more effectually injuring and competing with the plain-
tiffs in the transportation of passengers between said places, the
defendants had from time to time, since entering into their
said agreement and confederacy, published, and caused to be pub-
lished, and still continued to publish and advertise the said route
between Boston and Lowell, so made and formed as aforesaid by por-
tions of their said roads, as a railroad route between Boston and
Lmvcll, by publishing notices thereof in newspapers printed in said
cities of Boston and Lowell, and by posting up printed notifications
thereof in public places in said cities and in divers of the station-
houses on the roads of the defendant corporations; and had advertised
and sold, and still continued to advertise and sell tickets for the
transportation of passengers between said cities over said portions of
their roads, and also season tickets and package tickets for the use
of families and firms, and had employed and still did employ agents
to divert and dissuade passengers from traveling between said cities
upon and over the plaintiffs' road, and to induce them to travel over
613 Volume 5.
6407. CORPORATIONS. 6407.
the said roads of the defendant corporations; and by means of the
premises had succeeded in deterring and preventing many persons
from using the plaintiffs' road for the purpose of being transported
from Boston and Charlestoum to Lowell, and from Lowell to Boston and
Charlestown, and in depriving the plaintiffs of the gain and profits
which would have accrued to them from the transportation of such
passengers between said cities over their said road; and that the
defendant corporations, not content with the injury they had thus
inflicted, and were still continuing to inflict upon the plaintiffs, had
recently combined and mutually agreed, and now threatened and
intended to transport and convey passengers and property between
Boston and Lowell, and Charlestown and Lou<ell, over said portions of
said roads, by means of cars, and trains of cars, to run entirely
through without being changed, from the said terminus in one of
said cities to the said terminus in the other, and without the neces-
sity of the passengers being removed from one train of cars into
another at Wilmington-, all of which acts and doings and threatened
acts and doings were and would be a nuisance to the rights and
franchise of the plaintiffs, legally acquired as aforesaid under their
said charter and acts in addition thereto.
VII. And the plaintiffs further allege that they duly protested
against the acts heretofore enumerated which had already been done
and which were threatened to be done by the said defendants, and
made a demand upon the said defendants to desist therefrom, and to
account to them, the said plaintiffs, for the gains and fares received
for the transportation of passengers and the property as aforesaid,
but that the defendants refused to desist as requested, or to render
such account as demanded, and that said defendants are still doing
and assert that they will continue to do the acts complained of,
claiming the right of such transportation under their acts of incor-
poration, and under the Massachusetts Statutes (1851), chapter 196,
and Massachusetts Statutes (1852), chapter 118. Whereas plaintiffs
deny that said acts did or could legally confer upon the defendants
any such power.
Plaintiffs pray:
1. That {Here insert prayer for discovery)?-
2. That {Here insert prayer for an accounting)?
3. That {Here insert prayer for specific relief by way of injunction).*
4. That {Here insert prayer for general relief)*
5. That {Here insert prayer for due process).
Oliver Ellsworth, Solicitor for plaintiffs.
1. Discovery. For proper prayer for 3. Injunction. For proper prayer for
discovery in a bill in equity con- an injunction consult the title INJUNC-
sult the title DISCOVERY AND INSPECTION. TIONS.
2. Accounting. For proper prayer 4. Prayer for relief in Massachusetts,
for an accounting consult the title Ac- consult title BILLS IN EQUITY, vol. 3,
COUNTS AND ACCOUNTING. note 2, p. 444.
614 Volume 5.
6408. CORPORATIONS. 6408.
b. For Mandamus. 1
(1) To COMPEL RECONSTRUCTION OF HIGHWAY.
Form No. 6408.*
To the Honorable the Judges of the Court of Common Pleas of
Venango county, State of Pennsylvania.
The petition of W. C. Tyler, William Thurston and Peter Winsted,
road commissioners 3 of Cornplanter township in said Venango county,
and state of Pennsylvania, respectfully represents:
That in i8#7 a public highway (Here set out description of highway)
was laid out and opened in due and legal course. That in i8#7 a
company was incorporated to construct a turnpike over substantially
the same route, but it continued to be maintained as a public highway
until about i862, when the Franklin and Oil Creek Turnpike Company
was incorporated, took possession of the highway under its charter,
and improved and maintained it as a toll-road until in i85, when the
Atlantic and Great Western Railroad Company, in the construction of its
road-bed, so encroached upon the turnpike as to injure it materially.
Thereupon the turnpike company abandoned the road, and it became
and was once more maintained by the township as a public highway.
In 1 877, the franchises and papers of the said Atlantic and Great West-
ern Railroad Company were sold, and the purchasers organized as a rail-
road company under the name of theJVew York, Pennsylvania and Ohio
Railroad Company * the defendant hereinabove complained of. That
the principal office of the defendant company was at the city of Cleve-
land in the state of Ohio, but that its principal place of business in
Pennsylvania was at Meadville, Crawford county, in this commonwealth
of Pennsylvania, where an office was maintained and where Elisha
Derickson, one of its directors, resided. 5
1. For forms connected with mandamus subject to the duties and liabilities of the
proceedings, generally, consult the title constituent company, to whose fran-
MANDAMUS. chises, etc., it has succeeded by pur-
2. The petition for a mandamus in this chase. So held where the constituent
case is based upon the facts as set out company had originally injuriously oc-
in Com. v. New York, etc., R. Co., 138 cupied a certain public highway. Com.
Pa. St. 59. In that case a rule was v. New York, etc.,' R. Co., 138 Pa. St. 58.
issued upon the New York, Pennsyl- 5. The rule was served upon an agent,
vania and Ohio Railroad Company to This was held to be sufficient service,
show cause why a mandamus should and it was also held that mandamus
not issue requiring the reconstruction was properly directed to the consoli-
of the public highway. dated company instead of the original
For formal parts of applications for wrong-doer. The alternative writ of
mandamus, generally, consult the title mandamus in the name of the Com-
MANDAMUS; of petitions, generally, con- monwealth ex rel. W. C. Tyler, was
suit the title PETITIONS. awarded as prayed for, and the writ
3. Road commissioners of the proper served on M. C. Flower, agent of said
township acting officially may, without company, Franklin, Venango county,
the consent of the attorney-general, in- Pennsylvania, and " by leaving a true
stitute proceedings by mandamus to and attested copy of the same at the
compel a railroad company to recon- office of said company in Oil City, in
struct a public highway injuriously oc- said county, and with A, N. Simmons,
cupied by it. Com. v. New York, etc., at that time in charge of said office, for
R. Co., 138 Pa. St. 58. Mr. D. W. Guernsy, the agent of said
4. The consolidated company becomes company, and afterwards upon D, V.
615 Volume 5.
6409. CORPORATIONS. 6409.
The petitioners showing the premises and that they are without
other adequate and specific remedy at law, therefore pray that an alter-
native writ of mandamus may be directed to the said New York,
Pennsylvania and Ohio Railroad Company, requiring said company to
reconstruct said public highway, generally known as the Franklin and
Oil City road, between Reno and Oil City, in said Cornplanter township,
and for such other and further relief as to the honorable judges may
seem fit, and your petitioners will ever pray, etc.
W. C. Taylor.
William Thurston.
Peter Winsted.
( Verification^-
(2) To COMPEL RUNNING OF PASSENGER TRAINS.
Form No. 6409.*
To the Supreme Court of the State of Illinois:
The petitioner, Daniel Webster, state's attorney in and for the
county of Hamilton in the state of Illinois, in his official character,
complaining against the Louisville and Nashville Railroad Company, a
corporation duly and regularly organized and existing under and by
virtue of the laws of the state of Illinois, shows to this honorable
court the following facts, to wit:
On the third day of November, \%68, a majority of the electors of
Hamilton county voted to subscribe two hundred thousand dollars to
the capital stock of the Shawneetown branch of the Illinois Central
Railroad Company. The line of road contemplated by the charter
of . that company extended from Tonti, on the Chicago branch of
the Illinois Central railroad, to Shawneetown, the intermediate points
being Salem, Mt. Vernon and McLeansboro. (2 Private Laws (1865),
pp. 211-220.) The proposition to subscribe the two hundred thousand
dollars above mentioned was voted for upon the express condition
that McLeansboro was to be a point with a station on the road. In
pursuance of a provision in the charter of the St. Louis and South-
eastern' Railway Company, approved March 10, 1869, the County Court
of Hamilton county, on the eleventh day of June, iS69, subscribed to
the capital stock of the latter company the two hundred thousand ^ dol-
lars which had been voted to the former company. The St. Louis and
Derickson, a director of said company, by the state's attorney of ^Hamilton
residing at Meadville, Crawford county, county in his official character against
Pennsylvania." It was held that where the defendant railroad company, to
the principal office of the corporation compel it to stop its trains at what is
is without the state, a writ of alterna- known as the " old depot," in McLeans-
tive mandamus may issue from the boro, the county seat of Hamilton
county where its works are situated, county. A peremptory mandamus was
and to be served on a director residing awarded in conformity with the prayer
in an adjoining county. Com. v. New of the petitioner.
York, etc., R. Co., 138 Pa. St. 58. For formal parts of applications for
1. Consult the title VERIFICATIONS. mandamus, generally, consult the title
2. This Petition for mandamus is based MANDAMUS; of petitions of this charac-
upon the facts in People v. Louisville, ter, generally, consult the title PETI-
etc., R. Co., 120 111. 53. The proceeding TIONS.
was commenced in the supreme court
616 Volume 5.
6409. CORPORATIONS. 6409.
Southeastern Railway Company, by the terms of its charter, was author-
ized to construct, maintain and operate a railway from a point on
the Mississippi river opposite St. Louis to Shawneetown, on the Ohio
river, by way of Mt. Vernon, McLeansboro and Equality.
On the twenty-sixth day of March, iB69, the legislature passed an
act incorporating the Evansville and Southern Illinois Railroad Company,
by the terms of which that company was authorized to construct
and operate a railway from McLeansboro, Hamilton county, through
the towns of Enfield and Carmi, to the state line, on the Big Wabash
river. The charter of this company authorized the counties through
which the road should run to make donations to it, upon such terms
as might be agreed upon between it and the said counties. (3 Pri-
vate Laws, p. 10.) The corporate authorities of Hamilton county,
on the seventh day of June, iS70, in pursuance of the provisions of
said act, and in conformity with an affirmative vote of a majority of
the electors of the county, cast on the second day of November, iS69,
entered into a contract with the Evansville and Southern Illinois Rail-
road Company, whereby the county agreed to donate to the company,
upon the completion of the road and the running of trains thereon,
the sum of seventy-four thousand dollars in interest bearing bonds of
the county. This donation, by the terms of the contract, was made
upon the following express condition: "That the said railroad com-
pany should erect and forever maintain a depot for passengers and
freight at McLeansboro, within the corporate limits thereof, and not
exceeding one-half mile from the court-house in said town, and that
all passenger trains running upon said road, whether express or
otherwise, should stop at said depot to receive and put off passengers,
and that no discrimination should ever be made against said town of
McLeansboro, or any person or persons shipping to or from said
town, in favor of any other point, in the relative charges for carrying
either freight or passengers thereto or therefrom." The same con-
ditions were imposed by the vote of the people in favor of the dona-
tion. It was also stipulated in this contract, that the company
might, without forfeiture of the contract, consolidate with other
companies, on condition that the rights of the county in the respects
stated should be fully protected.
On the twenty-first day of February, iS71, the said company was
consolidated with the St. Louis and Southeastern Railway Company,
under trie name of the latter company. On the twelfth day of May
following, the County Court entered an order of record, approving
the consolidation of the two companies, upon the express stipulation
and understanding, as set forth in said order, "that nothing therein
contained should, in any wise, affect or invalidate any of the duties,
obligations and promises to the county, made by any of said railroad
companies prior to said consolidation," or by the new company since
the consolidation. The roads of the two companies thus consoli-
dated were built as contemplated by their respective charters, and
the two hundred thousand dollars subscription was paid to the con-
solidated company in instalments, of one hundred thousand dollars
each, on the twenty-third day of October and the twenty-eighth day of
Nwember, i&71, respectively. On \hzfirst day of January, i87, the
617 Volume 5.
6409. CORPORA TIONS. 6409.
county delivered to the consolidated company its bonds, amounting
to thirty-seven thousand dollars, in full payment and satisfaction of
the donation of seventy-four thousand dollars to the Evansville and
Southern Illinois Railroad Company, the remaining thirty-seven thousand
dollars having been already otherwise settled and discharged by the
county, to the satisfaction of the company. The entire subscription
and donation to the two companies were fully paid and discharged
by the county. Both lines of the consolidated road were completed
in 1 87#, and the old depot in question was located, as heretofore
stated, within a quarter of a mile of the court-house, and otherwise
in strict conformity with the conditions upon which the subscription
and donation were made by the county to these companies. On the
first day of December, i86'#, prior to any of the foregoing transac-
tions, except the subscription of two hundred thousand dollars, the
St. Louis and Southeastern Railway Company issued its bonds to the
amount of two million two hundred and fifty thousand dollars, secured
by a deed of trust to George Opdyke and Philo C. Calhoun, upon the
company's road and its appurtenances, together with all its rights
and franchises. After its consolidation with the Evansville and
Southern Illinois Railroad Company, to wit, on the first day of March,
1 87-?, the consolidated company issued another series of bonds,
amounting to one million dollars, secured by a second trust deed to
the same trustees, upon the road, its appurtenances, etc.
On the twenty-eighth day of February, i87.7, the company consoli-
dated with the Evansville, Carmi and Paducah Railroad Company,
whose line of road extended from Evansville, and formed a junction
with the St. Louis and Southeastern railway at its eastern terminus on
the said Wabash river. Consolidations were subsequently made
with other companies owning lines of road extending into the states
of Kentucky and Tennessee. On each consolidation, a new series of
bonds was issued, and secured, like the others, by deeds of trust
upon the road. Upon a bill filed by the bondholders, the Circuit
Court of the United States for the Southern District of Illinois, on the
thirtieth day of August, iS80, rendered a decree foreclosing all of the
above mentioned deeds of trust. By virtue of that decree, the St.
Louis and Southeastern Railway Company consolidated, together with
all the company's property rights and franchises, was, on the six-
teenth day of November, iS80, sold, at public outcry, to William F.
Whitehouse and Charles W. Opdyke, as representatives of the bond-
holders.
On the twelfth day of November, \%80, the Southeastern and St.
Louis Railway Company was organized, under the general laws of the
state of Illinois, for the purpose of purchasing and operating said
railway, which purchase was consummated on the twenty- seventh day
of January, iS81. On that day, Whitehouse and Opdyke, purchasers
under the decree, conveyeH the entire road, with everything per-
taining to it, to the said Southeastern and St. Louis Railway Company,
and the latter company thereupon leased the same to the Louisville
and Nashville Railroad Company, the present defendant. The defend-
ant is now operating the road under its lease, in violation of the
contracts between the county and the original companies.
618 Volume 5.
64 1 0. CORPORA TIONS. 6410.
Wherefore your petitioner prays a writ of mandamus, directed to
the said Louisville and Nashville Railroad Company, commanding it
forthwith to run all its said passenger trains to and into the said
town of McLeansboro, in said county and state, and there to stop
said passenger trains at the plate in said town of McLeansboro com-
monly known as the " old depot " for the purpose there of receiving
and of discharging of passengers, and for such further orders in the
premises as to the honorable court may seem fit and proper, and
justice may require, etc.
Daniel Webster, State's Attorney.
( Verification. ) x
c. For Mandatory Injunction to Enforce Decree.
APPLICATION FOR ORDER TO SHOW CAUSE WHY WRIT SHOULD NOT ISSUE.
Form No. 6410."
In the Supreme Court of Iowa.
The State of Iowa, on the relation of^\
the Attorney-General, plaintiff, October Term, iS97.
against > Application for rule to show
The Iowa Central Railway Company, cause,
defendant.
Daniel Webster, attorney-general of the state of Iowa, for and on
behalf of said state, states to the court that, on the twenty- seventh
day of October, i8<27, a decree of this court was rendered in the case
of the State of Imva against the Central Iowa Railway Company, to
which the attention of the court is respectfully directed, and
especially to that part of said decree following:
" And it is further ordered, adjudged and decreed that the said
Central Iowa Railway Company, its officers, agents and servants, its
successors, assigns, grantees and lessees, and each and every thereof,
are directed and commanded, until otherwise ordered, to forever
maintain and operate that certain piece and part of railroad lying
and being between the depot buildings in Northwood, Iowa, and
Manly Junction, Iowa, and will run its and their trains, engines, cars,
both passenger and freight, according to regular and public schedule
time, on and over said part of said railroad, giving to any and all the
public desiring to travel over the same, and to ship freight over the
same, the accomodations and facilities incident to and usual to such
desired service, and will maintain and operate said part of said rail-
road in connection with its other road extending south from Manly
Junction, Iou<a, to Albia, Iowa, and without unusual and unnecessary
delays; and to enforce this, the third paragraph of this decree, both
a preventive and mandatory writ of injunction will issue at any time
on the request of the state of Iowa or its attorney."
1. Consult the title VERIFICATIONS. granted as asked, the court holding
2. This application was made on be- that the decree against the predecessor
half of the state, and is based upon the company was binding on its successors,
facts set out in State v. Iowa Cent, although they were not parties to the
R. Co., 83 Iowa 721. The order was original action.
619 Volume 5.
6411.
CORPORA TIONS.
6411.
That the said defendant herein, the Iowa Central Railway Company,
has become the successor, assignee, and grantee of the Central Iowa
Railway Company, to which said decree was directed, and as such
successor, is operating said line of railway contrary to the provisions
of said decree, and a violation thereof, and is disregarding and dis-
obeying the mandate thereof.
Wherefore, Daniel Webster, attorney-general as aforesaid, asks
that the defendant be required to show cause why it should not obey
the mandate and order contained in said decree, and why a writ of
mandatory injunction should not issue against it thereon, and that,
upon the hearing thereof, an order be made requiring the defendant
to obey said decree, and that a writ of mandatory injunction be
ordered to issue against the defendant to enforce said decree.
Daniel Webster, Attorney-General.
( Verification^-
d. By Judgment Creditor* of Constituent Corporation. 3
(1) To SET ASIDE TRANSFER OF PROPERTY.
1. See the title VERIFICATIONS.
2. For forms connected with suits by
judgment creditors, generally, consult
the title CREDITORS' SUITS.
3. To Enforce Personal Liability of
Stockholders. The bill filed by judg-
ment creditors of constituent corpora-
tion to enforce personal liability of
stockholders of consolidated corpora-
tion in Hamilton v. Clarion, etc., R.
Co., 144 Pa. St. 34, averred in sub-
stance as follows:
" That the Mahoning & Susquehanna
Railroad Co. was incorporated by the
special act of April 19, 1854, P. L. (1855),
687, and that on or about November 22,
l8#/, the Conewango &* Clarion Railroad
Co. was duly incorporated under the
provisions of the act of April 4, 1868,
P. L. 62; that by articles of agreement,
made on or about December 6, i8<?/, the
said railroad companies, by virtue of
the act of May 16, 1861, P. L. 702, and
its supplement of April 10, 1869, P. L.
24, were merged and consolidated into
one company, called the Clarion, Mahon-
ing &> Pittsburgh Railroad Company.
That the capital stock of the said
Conewango &* Clarion R. Co. was divided
into 20,000 shares of the par value of
$50 each, and by the charter thereof
was subscribed for by certain persons
named in the bill, among whom were
S. S.Jackson, 100 shares; R. C. Wins-
low, sjo shares; Thomas K. Litch, joo
shares.
That, by force of the said merger
and consolidation and of the statutes,
such of the defendants as were sub-
scribers to the stock of the Conewango
f Clarion R. Co. became subject to all
liabilities, conditions and penalties, in
the same manner and with like effect,
as were the original subscribers to the
stock of the aforesaid Clarion, Mahon-
ing &> Pittsburgh R. Co., the corporation
defendant, and that the amounts for
which the several stockholders defend-
ant were liable were as set forth by
name and amount in the bill, including
S. S.Jackson, too shares, $5,000; R. C.
Winslow, 150 shares, $7^500; Thomas K.
Litch, joo shares, $/j,ooo.
That the plaintiffs were creditors of
the corporation defendant, for wages,
work and labor done and materials
furnished as follows: George C. Hamil-
ton, judgment, $4,025.00, interest and
costs; W. A. Irwin, judgment, $264.42,
interest and costs; Almon B. Hamilton,
judgment, $546.00, interest and costs;
and that other creditors also exist, hold-
ing large claims against the corporation
defendant.
That writs of fieri facias had issued
out of the Court of Common Pleas of
IVarren county, upon the judgments of
George C. Hamilton and Almon B. Ham-
ilton, and had been returned unsatisfied;
that the said corporation defendant was
wholly insolvent and had no available
assets other than the amounts due upon
its capital stock, and had taken no steps
to enforce payment from the stockhold-
ers defendant of their unpaid subscrip-
tions, or of so much thereof as was
necessary to liquidate its indebtedness.
Wherefore they pray:
620
Volume 5.
6411.
CORPORA TIONS.
6411.
Form No. 641 I .'
Ne^v York Supreme Court County of Dutcness.
Emory Cole, plaintiff,
against
The Miller ton Iron Company, The National Mining Company
of Pawling, George S. Frink as an officer and trustee of the
National Mining Company of Pawling, The Mercantile
Trust Company as trustee for bondholders of said Millerton
Iron Company, Charles J. Canda as receiver of the property, -
etc., of The Millerton Iron Company, The Dannemora Iron
Company, The Peninsular Car Company, George T. Wilson,
Louis F. Eaton, The First National Bank of Amenta, The
First National Bank of Plattsburgh, Lucien L. Sheddon,
Henry Maurer, Eugene Kelley, and William H. Chapman,
defendants.
The plaintiff complains of the defendants and, upon information
and belief, alleges the following as his cause of action:
I. That the defendants the National Mining Company of Pawling,
1. That the rights of the parties be
declared in the premises.
2. That an account be taken of the
amounts remaining unpaid upon the
capital stock of the corporation defend-
ant.
3. That an assessment be levied, in
such a manner and form as this court
may direct, for the amounts due upon
the subscriptions aforesaid of the stock-
holders defendant respectively, or so
much thereof as may be necessary to
pay the ascertained debts of the said
corporation defendant, and that there-
upon the said stockholders defendant
may be decreed to pay such respective
balances so as aforesaid assessed.
4. That a receiver be appointed to
collect and receive all and singular the
assets, books, papers, and other prop-
erty of the said corporation, and also
all sum or sums due by the said stock-
holders defendant, or any of them, for
their unpaid stock subscriptions, or for
any balances thereof, or such part or
parts thereof as may be necessary and
sufficient to liquidate the ascertained
indebtedness of the said corporation
defendant, together with such other
powers and duties as the court may
deem just and equitable.
5. That such other and further relief
be granted as may be necessary and
expedient."
The court held that the allegations
of the bill were sufficient as against the
consolidated company and entered a
final decree according to the prayer of
the bill, upon the theory that the stock-
holders were subscribers for the stock
of one of the prior companies merged
and consolidated, and that as such
they were liable to the extent of their
subscriptions unpaid.
For other forms relating to the en-
forcement of the personal liability of
stockholders consult the title STOCK
AND STOCKHOLDERS.
1. This complaint is copied from the rec-
ord in the case of Cole v. Millerton Iron
Co., 133 N. Y. 164. The action was
brought by the plaintiff, a judgment
creditor of the constituent corporation,
the National Mining Company, to set
aside a conveyance made by it of all its
property to the defendant, the consoli-
dated company, and to release said
property from the lien of the mortgage
executed by the consolidated corpora-
tion to the defendant, the Mercantile
Trust Company, and for the appoint-
ment of a receiver, etc. On appeal, the
judgment of the general term of the
supreme court, reversing the judgment
in favor of the defendants, entered upon
a decision in the court at special term,
was affirmed, the court holding that the
transfer by a corporation of all its prop-
erty and effects, which has the effect of
terminating the regular business, is il-
legal and not a consolidation according
to law.
For the formal parts of complaints or
petitions, generally, consult the title
COMPLAINTS, vol. 4, p. 1019; of bills in
equity, generally, consult the title BILLS
IN EQUITY, vol. 3, p. 417.
821
Volume 5.
64 1 1 . CORPORA TIONS. 6411.
the Millerton Iron Company, the Dannemora Iron Company, and the
Mercantile Trust Company, are all domestic corporations duly organ-
ized under the laws of the state of New York. That the defendants
the First National Bank of Amenia and the First National Bank of
Plattsburgh are banking associations, duly organized under and in
pursuance of the laws of the state of New York and of the United
States, the former located and doing business in the town of Amenia,
Dutchess county and state of New York, and the latter being located
and doing business in the village of Plattsburgh, in the county of
Clinton and state of New York; that the defendant the Peninsular Car
Company is a foreign corporation duly organized under and in pursu-
ance of the laws of the state of Michigan.
II. That the said plaintiff resides in the said county of Dutchess.
III. That on or about the first day of October, i87, this plaintiff
commenced an action in the Supreme Court of the state of New York,
in Dutchess county, against the said defendant the National Mining
Company of Pawling, for an injunction and damages, and such pro-
ceedings were duly had thereon that, on the fourteenth day of July,
1888, judgment was duly rendered and entered therein for an injunc-
tion as prayed in said action and for damages in the sum of two thou-
sand seven hundred and seventy-five dollars; and for which sum, together
with costs as duly allowed and taxed at the sum of two hundred and
eighty-eight dollars and seventy-four cents, making together the sum of
three thousand and fifty-seven dollars and seventy-four cents, judgment
was duly docketed in the Dutchess county clerk's office on the four-
teenth day of July, 1888. That an execution was duly issued upon
said judgment on the twenty-fourth day of October, 1888, to the sheriff
of the said county of Dutchess, that being the county in which are
located the office and principal place of business of the said National
Mining Company of Pawling, being the defendant in said execution,
and said execution has been returned wholly unsatisfied and the said
judgment remains wholly unpaid and unsatisfied.
IV. That at the time of the commencement of the said action the
said defendant the National Mining Company of Pawling was the
owner and in possession of various parcels of real estate situate in
the said county of Dutchess, and of leases, minerals and mining rights
and privileges therein, and which were conveyed to it by deeds as fol-
lows, to wit: (Here was set out description of the conveyances.} That the
said defendant the National Mining Company, at the time aforesaid,
was the owner and in possession of a certain mineral and mining
lease, executed by and between Stephen O. Davis and Hannah his
wife, of the one part, and Cornelius J. Haightoi the other part, bearing
date December 1, i870, and recorded in said clerk's office in book
No. 160 of Deeds, on page 319, and was also owner and in possession
of a large amount of property, consisting of ores, machinery, tools,
materials, goods, chattels, personal effects and fixtures situate upon
the premises described in the foregoing deeds and elsewhere.
V. And the plaintiff further shows that the business and objects
for which the said defendant the National Mining Company of Pawl-
ing was organized, as appears by its certificate of incorporation, was
" the mining of iron ore and the preparation of the same for market,
622 Volume 5.
6411. CORPORA TIONS. 6411.
and the selling thereof and the manufacture of iron," and its stock
was full paid ; and that, on or about the twentieth day of February ',
1888, in disregard of the said lawful business and objects of the said
corporation, and for a purpose foreign to its organization and in
fraud of the rights and interests of its stockholders and creditors,
among whom was the plaintiff, upon his claim in the said action then
pending, William H. Barnum, since deceased, and George S. Frink as
president and secretary of the said National Mining Company of Pawl-
ing, by two deeds bearing date on that day, did sell, assign, transfer
and convey unto the defendant the Millerton Iron Company all the
real and personal property owned and possessed by the said National
Mining Company of Pawling, for the expressed consideration of two
dollars and the assumption by the grantee of certain debts of the
said National Mining Company of Pawling; that the said deeds of
conveyance included all the property of every kind owned by the
said National Mining Company and left the said corporation wholly
insolvent and caused an entire suspension of its lawful business,
which has ever since continued and still continues, being now more
than a year; that the purpose and results of the said alienation of
the property of the said National Mining Company were well known
to the said grantee the Millerton Iron Company, the said William H.
Barnum and George S. Frink, by whom the same was made, being
also officers or trustees of the said Millerton Iron Company, which
said company was then insolvent.
VI. And the said plaintiff further shows that, at a meeting of the
stockholders of the said Millerton Iron Company, duly held pursuant
to notice, on the twenty-sixth day of December, i87, the capital stock
of the said Millerton Iron Company was increased from one hundred
and fifty thousand dollars to five hundred thousand dollars, in ten thou-
sand shares of fifty dollars each, and in the certificate of such pro-
ceedings and increase, duly filed, it is declared that the " entire
increase of three hundred and fifty thousand dollars shall be issued
for property to be acquired by said company in its business."
That on the said twentieth day of February, 1888, the said Millerton
Iron Company acquired by purchase and conveyance from the said
Dutchess Mining Company a large amount of real and personal property
and minerals and mining rights for the expressed consideration of
three hundred and fifty thousand dollars and the assumption of the
debts and obligations of the said Dutchess Mining Company, which
property the plaintiff believes and alleges to be the property proposed
to be acquired by and in consideration of the issue of the said increase
of stock made and declared as aforesaid.
VII. And the plaintiff further shows that on or after the said
twentieth day of February, i2>8, the said Millerton Iron Company exe-
cuted and delivered to the defendant the Mercantile Trust Company
a mortgage upon the property so acquired as above stated from the
said National Mining Company of Pawling (except that part mentioned
in subdivisions 8 and 9 of clause IV. of this complaint), and upon the
property so acquired, as above stated, from the Dutchess Mining Com-
pany, and upon property previously acquired by the said Millerton
Iron Company and then owned by it, to secure bonds of the said last
628 Volume 5.
6411. CORPORA TIONS. 6411.
named company to be issued to the amount of two hundred and fifty
thousand dollars, which said mortgage was made and executed by and
with the consent of the holders of only twenty-two hundred and eighty-
two and 34-100 shares of the stock of said Millerton Iron Company,
and was therefore, as plaintiff is advised and believes and alleges,
unauthorized, unlawful and void for the reason that the number of
shares of the stock of said company so consenting is less than two-
thirds of the whole number of shares.
VIII. And the plaintiff further shows that an action has been
commenced by the said Mercantile Trust Company for the foreclosure
of the said mortgage, in which it is claimed that two hundred and
twenty-five of said two hundred and fifty bonds were duly issued for
value; but the plaintiff is informed and believes and alleges that, if
said mortgage shall be held to be valid, not more than twenty-five
of said one thousand dollar bonds are now held by corporations or
persons who acquired the same in good faith and for value.
IX. And the plaintiff further shows that the defendants George T.
Wilson, Louis F. Eaton, the First National Bank of Amenia, the First
National Bank of Plattsburgh, the Dannemora Iron Company, the Pen-
insular Car Company, Henry Maurer, Eugene Kelly, William H. Chap-
man, and Lucien L. Sheddon are made defendants herein as judgment
creditors of the said Millerton Iron Company, having liens on the
property of the said last named company but subsequent to the claims
of this plaintiff as against the property of said National Mining Com-
pany so transferred as above shown to said Millerton Iron Company,
and said Charles J. Canda is made defendant as receiver of, etc., of
the property of said Millerton Iron Company, duly appointed in said
action by the Mercantile Trust Company, and no personal claim 'is
made as against any of said defendants.
Wherefore, the said plaintiff demands judgment in this action:
1. Canceling and setting aside and declaring void and of no effect
the alienation of the property of the National Mining Company made
by the said William H. Barnum, now deceased, and George S. Frink, to
the Millerton Iron Company as hereinbefore set forth.
2. Declaring unauthorized, unlawful and void the said mortgage
made by the Millerton Iron Company to the Mercantile Trust Company
as against the said property of the National Mining Company of
Pawling; or, if the same shall be held to be valid, determining what
portion of the bonds of the said Millerton Iron Company are entitled to
be paid therefrom as against the claim and right of this plaintiff.
3. Sequestrating the said property of the defendant the National
Mining Company of Pawling, and directing a just and fair distribution
thereof, and of the proceeds thereof among its fair and honest cred-
itors in the order and in the proportions prescribed by law in the case
of voluntary dissolution of a corporation.
4. Enjoining and restraining the said defendant the Mercantile
Trust Company from taking any further proceedings in its said action
as against the said property of the National Mining Company of
Pawling.
5. Appointing a receiver herein of the said property and effects of
the said National Mining Company of Pawling, and directing a sur-
624 Volume 5.
6412. CORPORA TIONS. 6412.
render of the said property and effects to him by the above named
Charles J. Canda as receiver.
6. For such other or further judgment or relief as to this court may
seem just and agreeable to equity.
William Downing, Attorney for Plaintiff.
(2) To SUBJECT PROPERTY TO LIEN AND JUDGMENT AGAINST
CONSTITUENT CORPORATION.
Form No. 6412.'
In the Superior Court of the County of San Diego, State of
California.
Alfred Blanc, plaintiff, "| Complaint Action to subject to
against I a lien of a judgment property
The Paymaster Mining Company, j alleged to have been fraudu-
defendant. J lently conveyed.
Alfred Blanc, the plaintiff in the above entitled action, complain-
ing of the Paymaster Mining Company, the defendant in said action,
alleges:
I. That the Esperanza Company is a foreign corporation doing busi-
ness in the territory of Arizona. That in February, i8#4, it became
indebted to the plaintiff upon two promissory notes, one for the sum
of one thousand dollars payable on demand, and the other for the sum of
five thousand dollars payable on the twelfth day of February, iS85; that
thereafter the said Esperanza Company became indebted to its various
stockholders, and a pretended assignment was made of all its prop-
erty to its acting managing officer and agent, one Blaisdell, for the
alleged purpose of paying the debts of such corporation, and that
the said Blaisdell made a pretended sale of such property at public
auction, at which sale he claims to have become the purchaser of the
tools, machinery, stamp mills, engines and boilers belonging to said
Esperanza Company, all of the value of seventy-five thousand dollars, at
a purely nominal sum, to wit, the sum of fifty dollars.
II. That thereafter, the said Blaisdell, together with the principal
officers, agents and stockholders of the said Esperanza Company, pro-
ceeded to organize the defendant company, and turned over to it all
of said property, for the purpose of cheating and defrauding plain-
tiff and other creditors of the Esperanza Company. That the said
1. The complaint in this action is based apply where the managing agent of
upon facts set out in Blanc v. Paymas- the insolvent corporation has fraudu-
ter Min. Co., 95 Cal. 527. Defendant lently transferred all the property to a
interposed a demurrer to this com- ne w corporation without consideration ;.
plaint, which was properly overruled, and that in such a case the new cor-
On appeal it was held that the com- poration will be held liable for the
plaint stated a cause of action, and indebtedness of the old to the extent
that the Esperanza company and Blais- of the value of the property received
dell were not necessary parties to the without consideration from it.
action, the court holding that while a For formal parts of complaints, gener-
creditor ordinarily must have recov- ally, consult the title COMPLAINTS, vol.
ered judgment and had execution 4, p. 1019; of bills in equity, generally,
returned unsatisfied before he can consult the title BILLS IN EQUITY, vol.
resort to equity to reach fraudulently 3, p. 417.
transferred property, the rule does not
5 E. of F. P. 40. 625 Volumes.
641 3. CORPORA TIONS. 64 1 3.
defendant the Paymaster Mining Company was so organized by the
said Blaisdell, the officers and agents and stockholders of the said
Esperanza Company, with the view of taking and receiving said prop-
erty as a part of its plan for defrauding the creditors of the Esper-
anza Company, and particularly the plaintiff, and that the said
defendant never paid any consideration whatever for said property.
III. That the said Esperanza Company has heretofore failed and
refused to pay the just demands of the plaintiff, and so has the
defendant herein, its alleged successor, although plaintiff has made
repeated demands upon the Esperanza Company, its former officers
and agents, and upon the defendant herein, the Paymaster Mining
Company.
Wherefore, plaintiff asks judgment that the pretended sales of the
said JBlaisdell, the defendant herein, be declared void; that it be
adjudged that the said defendant company holds the said property
charged with the plaintiff's claim of six thousand dollars, and interest
thereon to date, together with the costs of this action; that the said
property be sold to satisfy the sum claimed and for such other and
further relief as to the court may seem just.
Alfred Blanc.
( Verification. ) x
e. By Trustee of Stock Asking Instructions.
ANSWER OF DIRECTORS DENYING INTENTION TO CONSOLIDATE.
Form No. 6413.*
In the Superior Court.
Norfolk, ss.
John W. Treadwell
against
The Salisbury Manufacturing company and
(names of directors of said Company).
Answer.
1. The said defendants admit all the allegations of the bill previous
to the statements therein as to the intended sale, the truth of which
said statements they deny.
2. The defendants admit that a sale of the property of the Salisbury
Manufacturing Company was contemplated, and that if such sale could
be advantageously and satisfactorily effected they intended to take the
necessary legal steps to close and wind up that company and surrender
their charter.
1. Consult the title VERIFICATIONS. corporation, the bill also seeking to re-
2. The bill in equity in Treadwell v. strain the corporation from making such
Salisbury Mfg. Co., 7 Gray (Mass.) 393, sale. It was held that a trustee could
was filed by the executors and trustees not maintain such a bill. The answer
under the will of Thomas Cordis against in the text is based upon the facts set
the defendant and its directors, to ob- out in that case.
tain the instructions of the court as to For the formal parts of answers, gener-
their duties in case the corporation ally, consult the title ANSWERS IN CODE
should consummate an alleged contem- PLEADING; of pleas, generally, consult
plated sale of all their property to a new the title PLEAS.
626 Volume 5.
64 1 3. CORPORA TIONS. 6413.
3. The defendants deny that the said property could, if offered at
public sale or thrown upon the public competition, be sold for more
than two hundred and fifty thousand dollars.
4. The defendants deny that the votes of the company were illegal,
and aver that it was not determined that the same persons making the
same as directors would be interested as stockholders or directors in
the purchase by the new corporation, though it was possible that they
might be such stockholders or directors.
5. The defendants further allege that the votes were duly passed
after notice to every stockholder and were legal and valid ; that on full
inquiry and on consideration of the various modes of selling and dis-
posing of the property for the best interests of all the stockholders,
none appeared or was so discreet and expedient as a sale of the real
estate and fixtures to the Salisbury Mills at a price of two hundred and
fifty thousand dollars, payable in stock of that corporation, and that the
directors had therefore opened negotiations for such a sale, but had
made no definite or binding offer, and were ready and desirous to sell
on the best terms that could be had; that the stockholders and direc-
tors, in all their proceedings, had acted with sound discretion, and in
good faith toward every stockholder, and for the best interests of all,
and that they and the Salisbury Mills were desirous to admit every
stockholder in the old corporation to take and hold an interest in the
new one, to any extent he pleased, but that was and would be left
optional with him; that it had been well understood ever since
February last, by all the stockholders, that the stock in the new cor-
poration would be to a very large extent held by the old stockholders;
that by means of the establishment of such new corporation additional
capital would be obtained, which could be had in no other way, and
that, if such new corporation could be succcessfully organized, the
existing business could be continued without interruption.
6. The defendants further deny that the court has jurisdiction of the
bill filed herein; or that the corporation had surrendered their fran-
chise or had offered to do so, or had done any act necessarily and cer-
tainly tending to or initiatory of a dissolution, surrender or winding
up. That, on the contrary, they aver that now and ever after the sale
that subject would be retained wholly in the control and at the discre-
tion of the corporation, on a view of the ascertained fitness or unfit-
ness of such a result; that the corporation were solvent, able to pay
all their debts and have a surplus, if prudently and discreetly con-
ducted, and if the administration was left in the hands of a majority
of the stockholders, acting by directors in whom they and the business
community have confidence; but, that if the administration was taken
from their hands, or subjected to interference or control of others, great
inconveniences and sacrifices must result; and that irreparable mis-
chief would be occasioned to all persons interested in the company by
the granting of an injunction.
7. The defendants further aver that it was not their intention or
purpose to hold the stock as a corporation in another corporation, but
to make a sale of the property for the purposes of paying the debts of
the corporation and ultimately to wind up their affairs, and to dis-
tribute the stock obtained among the individual members, if they will
627 Volume ;.
6414. CORPORATIONS. 6414.
accept it, otherwise to reduce it to cash and distribute its value among
such members; and that they, as a corporation, did not procure the
charter of the new corporation, nor as a corporation do anything in
relation thereto.
8. The defendants further aver that it was their purpose after such
sale, if it should be effected, if it should appear expedient and needful,
to apply to the legislature or to this court, for a dissolution of the
corporation, according to law; and that it would be an expedient and
just act toward themselves and their creditors if it should be dissolved
and wound up and that the legislature or this court, on petition,
might order the same, and this whether any new corporation had been
or should be formed or not, and whether the contemplated sale should
be consummated or not.
Jeremiah Mason, Solicitor for Defendant.
f. Upon Causes of Action Existing against Constituent Corporation.
(1) ON BONDS. 1
Form No. 6414.*
New York Supreme Court Kings County.
Maria T. Polhemus, plaintiff,
against
The Fitchburg Railroad Company, defendant. 3
The plaintiff above named, appearing herein by Masten & Nichols,
her attorneys, complains of the above named defendant, and for
cause of complaint alleges and shows to the court as follows:
First For her first cause of action:
I. The plaintiff alleges that on or about the second day of January,
1 875, the Troy and Boston Railroad Company r , 4 a corporation created
and then existing under and by virtue of the laws of the state of
New York, made and executed its certain promissory note, duebill or
coupon, dated on that day, wherein and whereby it promised to pay to
the holder, or bearer, thereof the sum of thirty-five dollars on the first
day of July, i8#7, at the Bank of Commerce, in the city of New York.
1. For forms in actions on bonds or For the formal parts of complaints,
bills and notes, generally, consult the generally, consult the title COMPLAINTS,
titles BONDS (ACTIONS ON), vol. 3, p. 528, vol. 4, p. iorg; of Bills in Equity, gen-
and BILLS AND NOTES, vol. 3, p. 260. erally, consult the title BILLS IN EQUITY,
2. This complaint is copied from the vol. 3, p. 417.
record in the case of Polhemus v. Fitch- 3. Sued by New Name. Where a rail-
burg R. Co., 123 N. Y. 502. Plaintiff road company, after the execution of
company, the holder of bonds of the promissory notes, is consolidated with
Troy and Boston Railroad Company, another company and a new name as-
sued the defendant to recover upon sumed, the company may be sued by
certain interest coupons, on the ground the new name. Columbus, etc., R. Co.
that by the consolidation of the Troy v, Skidmore, 69 111. 566.
company with the Fitchburg company 4. The name of the constituent corpora-
the defendant, as a new corporation tion, against which the cause of action
by force of consolidation, assumed lia- arose, must be stated. Langborne v.
bility upon the bonds. Recovery was Richmond City R. Co., (Va. 1894) 19
properly had by plaintiff, which was S. E. Rep. 122.
sustained on appeal.
628 Volume 5.
6414.
CORPORA TIONS.
6414.
That said promissory note, duebill or coupon was one of a series of
one hundred such promissory notes, duebills or coupons, all bearing
even date and similar in their tenor, except as to the respective dates
of the payment thereof, attached and annexed to a certain bond or
obligation in writing, numbered two hundred and seventy, dated the said
second day of January, i&75, at the city of Trey, New York, and duly
made and issued by the said Troy and Boston Railroad Company.
That in and by said bond, or obligation in writing, the said railroad
company promised and agreed to pay the holder, or bearer, thereof
the principal sum of one thousand dollars on the first day of July, in
the year 1924, and interest thereon at the rate of seven per centum
per annum, to be paid semiannually on the first days of January and
July in each and every year, on presentation of the aforesaid promis-
sory notes, duebills or coupons at the said Bank of Commerce in the
city of New York.
II. This plaintiff further alleges, upon information and belief, that
heretofore the Fitchburg Railroad Company was a foreign corporation,
created and existing under and by virtue of the laws of the state of
Massachusetts, and owning a line of railroad which formed a continu-
ous line with the line of railroad owned by the said Troy and Boston
Railroad Company; that on or about the twenty-sixth day of March,
i S87, the said Fitchburg Railroad Company and its directors and the
said Troy and Boston Railroad Company and its directors made and
entered into an agreement in writing 1 bearing date the said twenty-
1. The consolidation agreement referred
to in the lext was as follows: " Articles
of Agreement made this twenty-sixth
day of March, A. D. eighteen hundred
and eighty-seven, between the Fitchburg
Railroad Company, a railroad corpora-
tion duly organized under the laws of
the Slate of Massachusetts, and by the
Directors of said Company of the first
part, and the Troy and Boston Railroad
Company, a railroad corporation duly
organized under the laws of the State of
New York, and by the Directors of said
Company of the second part.
Witnesseth: That whereas, the said
companies are owners and operating
railroads which form a continuous and
connected line of railroad with each
other, extending from the City of Troy
in the State of New York, to the City of
Boston in the State of Massachusetts, and
partly within and partly without each
of said States, and partly within the
State of Vermont, and desire to merge
and consolidate the capital stock, fran-
chises and property of said companies
pursuant to law; now therefore, in con-
sideration of the premises and of the
agreements of each party with the
other, it is hereby agreed that upon and
after the third day of May next, the
capital stock, franchises and property
of the said companies shall be and re-
main merged and consolidated into one
corporation upon the following terms
and conditions:
1. The name of the new corporation
shall be The Fitchburg Railroad Com-
pany.
2. There shall be a Board of thirteen
Directors to manage the affairs of the
consolidated company, and the follow-
ing-named persons, residing at the
places set opposite their names, shall
be the first directors and officers of such
consolidated company, to wit: (ffere
was listed the names and residences of the
president, secretary, treasurer and thirteen
directors.)
3. The capital stock of said consoli-
dated corporation shall, until the
amount thereof shall be changed ac-
cording to law, consist of fifteen million
one hundred and ninety-four thousand six
hundred dollars ($/j, /<?./, <50o), divided
into shares of one hundred dollars ($/oo)
each, to be issued as below set forth.
Of this amount of capital stock, one
hundred and one thousand nine hundred
and forty-six (fOf,y^6) shares shall be
preferred stock, entitled to the same pre-
ferences and priority (except as herein
below set forth) as the present preferred
stock of the Fitchburg Railroad Company,
629
Volume 5.
6414.
CORPOR'A TIONS.
6414.
sixth day of March, iS87, and providing for a consolidation of the said
two corporations from and after the third day of May, iS87, pursuant
to the laws of the state of New York; that said agreement was after-
ward duly adopted by the stockholders of the said corporations in
form and manner as required by the laws of the state of New York,
and thereafter said agreement, with the certificates required by the
laws aforesaid, was duly filed in the office of the secretary of state of
the state of New York; that thereby pursuant to such agreement the
said two corporations became and were consolidated into one corpora-
tion, to be known by the name of, and which is the defendant, the Fitch-
burg Railroad Company; that pursuant to said agreement all the capital
and fifty thousand (50,000) shares shall
be common stock with the same rights,
powers and privileges as the present
common stock of the Fitchburg Railroad
Company.
4. The capital stock of the present
Fitchburg Railroad Company shall upon
such consolidation be and become
thereby capital stock of the new cor-
poration, share for share, and of the
same kind as to preference as the same
now is: The capital stock of the Troy
and Boston Railroad Company shall be
surrendered and extinguished and the
certificates therefor canceled, and there
shall be distributed and delivered to
the shareholders of the Troy and Boston
Railroad Company at the time of such
consolidation or within a reasonable
time thereafter, having regard to the
transaction of the necessary business,
certificates for ten thousand shares of
the preferred capital stock of the new
or consolidated company, of the same
kind and character, except as is herein
below set forth, as the preferred stock of
the present Fitchburg Railroad Company;
such shares shall be distributed to the
shareholders of the Troy and Boston
Railroad Company pro rata according to
the number of shares held by them at
the time of such consolidation; there
shall also be issued and held by the
said new or consolidated company three
thousand three hundred and thirty-three
shares of the said preferred capital
stock of said company, which, or such
portions of the same as the directors of
the consolidated company may at any
time deem necessary, shall be held by
it in trust for the shareholders of the
Troy and Boston Railroad Company, but
as an indemnity to the consolidated
company against any outstanding
claims against or liabilities of said
Troy and Boston Railroad Company which
said new company shall be compelled
to pay for the protection of its prop-
erty; which said above mentioned three
thousand three hundred and thirty-three
shares of stock or so much of the same as
is not in the judgment of said directors
required for the purposes of said trust,
shall be distributed to the said stock-
holders of the Troy and Boston Railroad
Company pro rata as in the distribution
of the above mentioned ten thousand
shares of stock, and all shares of stock
when distributed shall entitle those who
shall receive them to all dividends
thereon, which shall have been de-
clared on the other preferred stock of
the new or consolidated company, sub-
ject, however, to such deductions there-
from and agreements in relation thereto
as are hereinafter contained or provided
for: No part of such shares so held in
trust shall be sold to pay any such
claims against the Troy and Boston Rail-
road Company until after the trustees,
provided for in the eighth article of this
agreement, shall have had reasonable
notice to pay the same, and if the same
shall not be paid by said trustees, upon
such notice, the shares so held in trust
or such part thereof as is necessary for
that purpose shall be sold at public or
private sale and without further notice,
and the proceeds applied to the liquida-
tion of any of said claims. In case of
shares remaining to be distributed to
the shareholders of the Troy and Bos-
ton Railroad Company after all have been
distributed and delivered, which can
be done by the delivery of full shares
in the manner hereinbefore provided
for, the treasurer of the new or consoli-
dated company shall sell the same at
open sale, and the proceeds of such
sale shall be apportioned, distributed
and paid to the shareholders of the
Troy and Boston Railroad Company at
the time of said consolidation, with
any dividends payable to shareholders
of the Troy and Boston Railroad Com-
pany thereon, so that all stockholders
630
Volume 5.
6414.
CORPORA TIONS.
6414.
stock, property and franchises which were of the said Troy and Bos-
ton Railroad Company have been transferred and surrendered to, and
are now held by, the defendant, the Fitchburg Railroad Company;
that said defendant, in and by said agreement and act of consolida-
tion, undertook, covenanted, promised and agreed, and under and by
virtue of the laws of the state of New York authorizing such consoli-
dation became, was and is obliged to pay said bond and the interest
thereon, and to pay said promissory note, duebill or coupon which
became due and payable on the first day of July, i&8T, as aforesaid.
III. That this plaintiff, after the issue of said bond or obligation
in writing, as aforesaid, for value purchased the same, and became
of the Troy and Boston Railroad Com-
pany shall share alike pro rata accord-
ing to their holdings of the shares of
the capital stock of said last named
company in the capital stock of the new
or consolidated company so far as
practicable, by full shares and for frac-
tional parts of shares in the amount of
proceeds representing the fractional
parts of shares.
5. The by-laws of the present Fitch-
burg Railroad Company, except so far as
the same may be inconsistent with this
agreement, or with the provisions of
law, shall constitute the by-laws of the
consolidated corporation until legally
changed, and the officers and agents of
the present Fitchburg Railroad Company,
together with the addition of three to
the present Board of Directors as here-
inbefore provided, shall constitute the
officers and agents of the consolidated
corporation until others are chosen in
their places, and the directors shall,
until otherwise provided, be chosen by
ballot at the annual meeting of the
stockholders on the last Tuesday of
January of each year.
6. The new or consolidated company
shall, upon the order or request of the
trustees hereinafter provided for, fur-
nish the sum of three millions of dollars
with interest at four per cent, per
annum, from the date of consolidation,
of which sum not more than seventy-five
thousand Jive hundred dollars and in-
terest at Jour per cent, per annum,
shall be used for the payment of the
bonds of the Troy and Boston Railroad
Company, secured by a mortgage bear-
ing date the zd day oijune, 1857; not
more than one million five hundred thou-
sand dollars and interest at four per
cent, per annum, shall be used for the
payment of the bonds of the Troy and
Boston Railroad Company, secured by
a mortgage bearing date the jth day
of September, 187^; not more than one
631
million dollars and interest at four per
cent, per annum, shall be used for the
payment of the bonds of the Troy and
Boston Railroad Company, secured by a
mortgage bearing date the qth day of
November, i87<f; not more than two
hundred and fifty thousand dollars and
interest at four per cent, per annum,
shall be used for the payment of the
bonds of the Troy and Boston Railroad
Company, secured by a mortgage bear-
ing date the 26th day of July, iS&; and
the residue of said three millions of dol-
lars and interest shall be used by said
trustees for the payment of the in-
debtedness of the Troy and Boston Rail-
road Company other than that secured
by said mortgages: said Troy and Bos-
ton Railroad Company agrees that said
sum of three millions of dollars and in-
terest shall be sufficient to pay and
discharge all the indebtedness of the
said Troy and Boston Railroad Company
at the time of the consolidation, whether
absolute or contingent, and if said new
or consolidated company shall be ob-
liged to pay any sum or sums on
account of said indebtedness, or the
interest thereon over and above said
sum of three millions of dollars and in-
terest as above stated, said new or con-
solidated company, after exhausting
the indemnity hereinbefore provided
for by sale of stock held in trust, shall
retain from the dividends upon the
shares of stock distributed to the
shareholders of the Troy and Boston
Railroad Company, a sufficient sum
to make good and repay the amount so
paid over and above said sum of three
millions of dollars, and interest, and
the proceeds of said trust stock and its
dividends. The said new or consoli-
dated company shall, at the election of
such of the stockholders of the securi-
ties of the Troy and Boston Railroad
Company as may on or before the ist
day oijuly next, in writing request.
Volume 5.
6414.
CORPORA TIONS.
6414.
and she is now the lawful holder and owner thereof, and by reason
thereof became and she is now the lawful holder and owner of said
above mentioned promissory note, duebill or coupon.
IV. That on \.\\t first day of July, i87, the plaintiff presented said
promissory note, duebill or coupon at the Bank of Commerce in the
city of New V0r&,and demanded payment thereof, which was refused.
V. That no part of said promissory note, duebill or coupon has
been paid, and the defendant wholly neglects and refuses to pay the
same.
Second. For her second cause of action: (Then followed other causes
of action with similar allegations counting upon the other notes, duebills or
coupons. )
Wherefore, the plaintiff demands judgment against the defendant
issue and deliver bonds of the new or
consolidated company in exchange at
par for each of the bonds of the Troy
and Boston Railroad Company, held by
them at the time this agreement shall
go into effect as the bona fide owners
of the same, such bonds to be payable
in twenty years from the date thereof,
and to bear interest at the rate of four
per cent, per annum, payable semi-
annually.
7. In consideration of the sums re-
quired to be expended upon the Troy
and Boston Railroad Company' s railroad,
the shares herein agreed to be dis-
tributed and delivered to the share-
holders of the Troy and Boston Railroad
Company shall be entitled to the same
rights as the preferred stock of the
Fitchburg Railroad Company, excepting
that for and during the term of four
years from the date of said consoli-
dation such shares shall receive only
three-fifths of the amount of dividend
paid upon the remaining preferred
stock in said new and consolidated
company, and for and during the next
succeeding four years thereafter shall
receive only four- fifths of the amount
of dividend paid upon such remaining
preferred stock.
8. Said sum of three millions of dol-
lars and interest in cash or bonds as
hereinbefore provided for, shall be paid
upon the order of the persons con-
stituting the directors of the Troy and
Boston Railroad Company at the time of
such consolidation, as trustees for the
new and consolidated company for
whom the treasurer of the new com-
pany, for the time being, shall act as
treasurer, and they shall also have con-
fided to them the settlement, prosecu-
tion and collection of all claims, debts,
bills, notes, rents, accounts and things
in action, outstanding for or against the
T'roy and Boston Railroad Company, and
for such purposes may use the name
and agencies of the new company so
far as is required by or convenient for
such trustees. Trustees dying or re-
signing may, in the discretion of the
survivors or remaining trustees, be re-
placed by choice of the remaining
trustees from among the former share-
holders of the Troy and Boston Rail-
road Company.
9. Whenever the consolidation shall
have been effected under the provisions
of this agreement, the stock of the
Troy and Boston Railroad Company shall
cease to have any voting power or
participation in profits or dividends,
and shall have no vitality or value
except to preserve the rights of credit-
ors and liens upon its property, or to
close up the affairs of the Troy and Bos-
ton Railroad Company, and for the pur-
pose of exchange, as aforesaid, for
stock of the new or consolidated com-
pany, and no more stock of the Troy
and Boston Railroad Company shall be
issued, and the stock books of the Troy
and Boston Railroad Company shall be
closed, except for the purpose of effect-
ing or facilitating said exchange.
10. Whenever this consolidation takes
effect such new or consolidated com-
pany shall thereupon and thereafter
have, hold, possess and enjoy all the
rights, privileges, exemptions and fran-
chises, and all the property, real, per-
sonal and mixed, claims, debts and
demands subject to the terms of this
agreement then had or held by either
party hereto, and shall be subject to all
the duties, obligations, restrictions,
disabilities, debts and liabilities to
which either party hereto is then sub-
ject, excepting so far as the consoli-
dated company is not liable for the
mortgages of the Troy and Boston Rail-
12 Volume 5.
6415.
CORPORA TIONS.
6415.
for the sum of three hundred and fifty dollars, with interest on the
sum of one hundred and seventy-five dollars from the first day of July,
i887, and on the sum of one hundred and sertenty- five dollars from the
first day of January, 1888, besides the costs and disbursements of
this action.
Masten 6^ Nichols, Attorneys for Plaintiff,
Office and postoffice address,
No. IJfi Broadway, New^ York City.
( Verification. ) x
(2) ON JUDGMENT. 2
Form No. 64 I 5- 3
In the Circuit Court of La Salle County,
January Term, iS98.
State of Illinois, \
County of La Salle. \
Mary L. Ashling, as administrator of the estate of Edward W. Ash-
set.
road Company, and bonds and interest
secured thereby, according to the pro-
visions of section 5 of chapter 917 of
the laws of the state of New York,
passed in 1869.
11. After the consolidation shall
have been complete and effectual, each
of said railroad companies, parties
hereto, shall continue only for the pur-
pose of perfecting said consolidation
and preserving the rights of all creditors
and liens upon property, and doing all
such acts and things as may be neces-
sary therefor, and in closing up its out-
standing affairs, and shall do all things
and execute all such transfers, convey-
ances and assignments as the consoli-
dated corporation may deem necessary
or expedient to vest in itself any prop-
erty or estates, rights or claims, except
as aforesaid, which do not vest in it by
virtue of these articles.
12. This agreement shall be, accord-
ing to law, submitted to the stockhold-
ers of each of the companies, parties
hereto, and when duly adopted by the
respective companies, shall become ef-
fectual, and the same, or a copy thereof,
shall be filed pursuant to the statutes
in such case made and provided.
In witness whereof, the Directors of
the said Fitchburg Railroad Company
and the Directors of the Troy and Bos-
ton Railroad Company have executed
these presents and affixed the corporate
seal of each company." (Signatures and
corporate seals. )
1. See the title VERIFICATIONS.
2. For forms in actions upon judg-
ments, generally, consult the title
JUDGMENTS.
Consideration need not be averred or
proved, where a judgment creditor sues
a consolidated company on a judgment
obtained against a constituent com-
pany. It is sufficient if it appear by
proper averment that the judgment was
obtained for work and labor performed,
and that it has not been satisfied. St.
Louis, etc., R. Co. v. Miller, 43 111. 199.
3. This declaration is based upon the
facts set out in Chicago, etc., R. Co. v.
Ashling, 160 111. 375. The plaintiff, as
administratrix, brought suit against the
Chicago and St. Louis Railroad Com-
pany to recover damages for an alleged
negligent killing of her intestate. After,
ward, and before judgment against the
St. Louis Company was rendered, but
while suit was pending, said company
consolidated with the Santa Fe Com-
pany. After judgment recovered
against the St. Louis Company, plain-
tiff brought her action against the de-
fendant, the Santa Fe Company. The
judgment in favor of the plaintiff was
affirmed in the appellate court, and
subsequently in the supreme court, the
court holding that a consolidated com-
pany is not relieved from liability upon
a judgment rendered against one of its
constituent corporations after the con-
solidation upon a cause of action accru-
ing before the consolidation.
For formal parts of declarations, gen-
erally, consult the title DECLARATIONS;
of complaints, generally, consult the
title COMPLAINTS, vol. 4, p. 1019.
8 Volume 5.
6416. CORPORA TIONS. 6416.
ling, deceased, plaintiff, by Oliver Ellsworth, her attorney, complains
of the Chicago, Santa Fe and California Railway Company, defendant,
of a plea of debt: For that whereas, the plaintiff, in the May term of
the said Circuit Court, in the year of our Lord one thousand eight
hundred and ninety-one, to wit, on the seventh day of May in the same
year, by the consideration and judgment of the said Circuit Court,
recovered against the said Chicago and St. Louis Railway Company, in
a certain action of trespass on the case, the sum of five thousand one
hundred and eighty-three dollars and eighty-five cents damages, and also
the costs of plaintiff in that behalf, taxed at the sum of one hundred
dollars, whereof the said Chicago and St. Louis Railway Company was
convicted, as by the record thereof, remaining in the said court, more
fully appears; said judgment still remains in force.
And the Chicago and St. Louis Railway Company was duly consoli-
dated with the said Chicago, Santa Fe and California Railway Company,
a corporation then existing under the laws of the state of Illinois, and
the defendant in that suit, under the statutes of the state of Illinois,
and thereby became part and parcel of the said Chicago, Santa Fe and
California 'Railway Company, the defendant, and incorporated there-
with, and that the two companies became one company under the
name of the Chicago, Santa Fe and California Railway Company, that
said consolidated company, the Chicago, Santa Fe and California Rail-
way Company, the defendant, by reason of said consolidation, became
liable for all the debts and liabilities of the said Chicago and St. Louis
Railway Company, existing or accrued prior to such consolidation,
among which was the judgment hereinbefore recited; that the lia-
bility against the Chicago and St. Louis Railway Company accrued on
the twenty-third day of February, 1886. An action was commenced
against said company prior to said consolidation, to wit, on the sixth
day of June, 1886: Yet the defendant herein, the Chicago, Santa Fe and
California Railway Company, has not paid to the plaintiff the said sums
of money so by her recovered as aforesaid, altogether amounting to
the sum of five thousand two hundred and eighty-three dollars and eighty-
five cents, or any part thereof, but refuses so to do, to the damage of
the plaintiff of five thousand three hundred and eighty-three dollars and
eighty-five cents; and therefore she brings her suit, etc. And the said
plaintiff brings into court here the letters of administration to her
granted by the County Court of the said county of La Salle, which
gives sufficient evidence to the said court here of the grant of ad-
ministration of the said estate to the said plaintiff, etc.
Oliver Ellsworth, Plaintiff's Attorney.
(3) ON MORTGAGE. 1
COMPLAINT IN FORECLOSURE.
Form No. 6416.*
1. For forms connected with the en- set out in Eaton, etc., R. Co. v. Hunt,
forcement of mortgage liens, gener- 20 Ind. 459. The court held in that
ally, consult the title FORECLOSURE OF case that the Ohio company having ac-
MORTGAGES. quired title to the road in Indiana after
2. This complaint is based upon the facts the execution of said two mortgages,
634 Volume 5.
64 1 6. CORPORA TIONS. 64 1 6.
State of Indiana, \ Wayne Circuit Court.
Wayne County, f SS ' Term, 18 .
John Hunt and (naming the other plaintiffs), plaintiffs, ^
against.
The Eaton and Hamilton Railroad Company, George >
Carlisle, trustee, and (naming the other defendants), \
defendants.
John Hunt and (naming the other plaintiff s), plaintiffs, complain of
the Eaton and Hamilton Railroad Company and (naming the other
defendants), defendants, and say that on \hzfirst day of November,
i&52, there existed a corporation in the state of Indiana created
under a law of that state, with power to construct a railroad from
Richmond, in the state of Indiana, to the Ohio state line, a distance of
about six miles. That said corporation was known by the name of
the Richmond and Miami Railroad Company. That on the day named,
said corporation issued sixty bonds of one thousand dollars each, pay-
able to George Carlisle or bearer, and on the same day executed to
said Carlisle, as trustee, a mortgage on the six miles of road named
as security for the payment of the principal and interest of said
bonds, which mortgage was duly filed for record in the recorder's
office of county on the day of , in liber , pages
, . That said bonds were guaranteed by a railroad company in
the state of Indiana, called the Eaton and Hamilton Railroad Company,
created by or under a law of that state, and vested with power to
construct a railroad from Hamilton, in the state of Ohio, to the state
line of Indiana, in the direction of Richmond, in the latter state.
That in iB63 the Richmond and Miami road was completed.
That on the first day of January, i&54, forty additional bonds were
issued by the Richmond and Miami Railroad Company, and a second
mortgage was executed thereby to said Carlisle, as trustee, upon the
six miles of road to secure the payment of said bonds, which mort-
gage was also duly filed for record in the recorder's office of
county, on the day of , in liber , pages , .
That the said first-mortgage bonds above referred to became due
on the first day of Noi'ember, i&62, and the interest on them was
payable semiannually, but neither the principal nor the interest
has been paid, and no part thereof. That plaintiffs are the owners
of fifty-seven of said first-mortgage bonds, and that they had requested
said Carlisle, the trustee, to proceed and enforce their rights against
the defendant railroad company under the mortgage, but that said
trustee had refused so to do. That the remaining three bonds are in
the hands of persons to plaintiffs unknown. That (Here follow the
names of the holders of second-mortgage bonds, and an allegation that they
claim liens on said road subject to plaintiffs lien).
That legislative acts of the states of Ohio and Indiana authorize
took the same subject thereto, and the doctrine is laid down in Wright v.
holders of said first-mortgage bonds Bundy, n Ind. 398.
had a right to enforce the payment For the formal parts of complaints,
thereof by the foreclosure of said mort- generally, consult the title COMPLAINTS,
gage in the Indiana courts, and the vol. 4, p. 1019; of declarations, gener-
sale of said road there. The same ally, consult the title DECLARATIONS.
635 Volume 5.
6416.
CORPORA TIONS.
6416.
the Eaton and Hamilton Railroad Companies to consolidate upon such
terms as might be agreed upon, but none jof said acts contained any
provisions surrendering the jurisdiction of either state to the other
over the consolidated company. That the two companies aforesaid
executed the following articles of consolidation : (Here was set out
copy of consolidation articles).*
That, prior to said consolidation, bonds and mortgages had been
issued by the Eaton and Hamilton Railroad Company, which were liens
upon the road of that company in Ohio. And that, after said con-
solidation bonds were issued, secured by mortgages on the entire line
of the road, in addition to those bonds prior thereto by the separate
companies hereinabove referred to.
Wherefore, the plaintiffs pray judgment for sixty thousand dollars,
the foreclosure of said mortgage, and that said railroad upon which
the said mortgage hereinabove referred to has been laid, or so much
1. Articles of consolidation referred to
in the text were as follows:
" An agreement made and entered
'into by and between the Richmond and
Miami Railroad Company, duly incor-
porated by the General Assembly of the
State of Indiana, of the one part, and
the Eaton and Hamilton Railroad Com-
pany, in like manner incorporated by
the General Assembly of the State of
Ohio, of the other part, witnesseth:
That,
First. These companies, their capital
stock, their roads, debts, dues, rights
in action, franchises, interests, and
property of every kind, character and
description, shall be, and hereby are,
merged, united and consolidated into
one joint-stock company, one road, one
interest, and one property, upon the
terms following, that is to say:
Second. The corporate name, fran-
chises, rights, immunities and organi-
zation of the Eaton and Hamilton
Railroad Company shall be preserved
and remain intact, and the said consoli-
dated company shall be known by, and
its business transacted, in that name,
in every sense, as if this consolidation
had not taken place, except so far
merely as the enlarged interests of the
company, and a compliance with the
laws of Indiana, may modify the same.
Third. The debts, dues and rights in
action, owing to. and accruing in favor
of, the said Richmond and Miami Rail-
road Company, all and singular the
rights and franchises, the road with its
right of way, fixtures and appurte-
nances,depot and other station grounds,
buildings and water tanks, with all
other rights and interests and property,
real, personal, and mixed, of every
kind, character, and description, and
all and singular the interest, right and
titles therein, whether legal or equita-
ble, of the said Richmond and Miami
Railroad Company, are to be, and are
hereby, granted, transferred and con-
veyed to, and merged in, those of said
Eaton and Hamilton Railroad Company,
its successors and assigns forever, as
fully and completely, to all intents and
purposes, as they are now vested in the
said Richmond and Miami company.
Fourth. The said Eaton and Hamil-
ton Railroad Company is to, and does
hereby, assume the franchises, rights,
immunities and liabilities of the said
Richmond and Miami Railroad Company,
and especially is to assume, liquidate
and pay all debts, dues, and liabilities,
outstanding against it, and to that end
is, so far as the unfunded indebted-
ness extends, to apply semiannually,
to its liquidation, an amount equal to
one-seventh of the net surplus earnings
of the entire road, until the whole
shall be paid, and is, upon the surren-
der of certificates, or other evidence of
ownership of the capital stock of the
said Richmond and Miami company, to
issue to the party in interest evidence
of ownership of a like amount of the
capital stock of said Eaton and Hamil-
ton Railroad Company.
Fifth. This agreement shall take ef-
fect and be in force on and after the
ist day of December, i8jy, at which
time the name and organization of the
Richmond and Miami company shall
cease, and its separate legal identity,
franchises, rights, interests, property,
etc., vest and merge into those of the
said Eaton and Hamilton company. In
witness," etc.
636
Volume 5.
6417.
CORPORA TIONS.
6417.
thereof as may be necessary, be sold to satisfy said claim and the
costs herein laid out and expended.
Oliver Ellsworth, Plaintiffs' Attorney.
( Verification^-
III. REORGANIZED CORPORATIONS. 2
1. Proceedings by or on Behalf of. 3
a. For Mandamus. 4
TO COMPEL SECRETARY OF STATE TO FILE CERTIFICATE WITHOUT
PAYMENT OF TAX.
Form No. 6417.*
To the Supreme Court of the State of New York:
The petition of the Consolidated Kansas City Smelting and Refining
Company respectfully shows as follows:
First. Your petitioner is a domestic corporation, organized and in-
corporated under an act entitled " An Act to authorize the formation
of corporations for manufacturing, mining, mechanical or chemical
1. Consult the title VERIFICATIONS.
2. Reorganization on foreclosure sale or
on insolvency is provided for by the
statutes of most of the states. With
the exception of Connecticut and Vir-
ginia the reorganization is effected
without recourse to the courts. Conn.
Laws (1895), p. 467. See also list of
statutes cited supra, note I, p. 527.
Reorganization is Distinguished from
Reincorporation. See Matter of Consol.
Kansas City Smelting, etc., Co., 13 N.
Y. App. Div. 50. Close v. Potter, 2
Misc. (N. Y.) i; People v. Blake, 19
Cal. 579.
Reorganization must be Averred.
Where the name of the corporation has
been changed on reorganization, it is
sufficient to aver that the company was
originally incorporated under another
name, and that under authority of law
it amended its charter and changed its
name. Hyatt v. McMahon, 25 Barb.
(N. Y.) 457-
An amendment substituting the reorgan-
ized corporation in place of the receiver
of the old corporation is allowable in
an action against a receiver who was
discharged from his receivership more
than sixty days before the reorganiza-
tion. Abbott v Jewett, 25 Hun (N. Y.)
603; Tighe v. Pope, 16 Hun (N. Y.) 180.
Specific averments in a complaint show-
ing that defendant was a new corpora-
tion must control averments therein
charging that the defendant is the same
corporation under a different name
from that under which it entered into
contractual relations with plaintiff.
Moyer v. Fort Wayne, etc., R. Co., 132
Ind. 88.
3. Proceedings by and against corpora-
tions, generally, see supra, note I, p. 527.
4. For forms relating to mandamus pro-
ceedings, generally, consult the title
MANDAMUS.
5. This petition is copied from the
record in the Matter of Consol. Kan-
sas City Smelting, etc., Co., 13 N. Y.
App. Div. 50. In that case on appeal,
by petitioner, from an order of the su-
preme court, made at special term,
denying its application for a temporary
writ of mandamus to compel the secre-
tary of state to review a certificate to
increase its capital stock, the order was
reversed and the motion for the writ
granted, the court holding that the
reorganization of a corporation, origi-
. nally corporated under the General
Manufacturing act, under the Business
Corporation law does not create a new
corporation which is bound to pay the
organization tax required by law.
637
Volume 5.
64 1 7. CORPORA TIONS. 64 1 7.
purposes," that is to say, chapter 40 of the Laws of 1848 of the State
of New York, and the acts extending and amending the same. On
the twenty-sixth day of March, i8#7, a certificate of its incorporation
in the form, and containing the statements, required by the said act,
was duly filed, as thereby required, in the office of the clerk of the
city and county of New York, that being the city and county in which
the principal part of the business of the said company within the
state of New York was to be, and has been, carried on. On the
twenty-fourth day of March, i87, a duplicate of the said certificate
was duly filed, as required by said act, in the office of the secretary
of the state of New York. The amount of your petitioner's capital
stock, as stated in the said certificate, was the sum of two million
dollars (2,000,000), and prior to such filing of the said duplicate
certificate in the office of the said secretary the sum of twenty-five
hundred dollars (2500) was paid by your petitioner to, and was re-
ceived by, the treasurer of the state of New York in full payment of
the tax of one-eighth of one per cent, upon Jhe amount of such capital
stock required by chapter 143 of the Laws of 1886 of the State of
New York for the privilege of the organization of your petitioner as
aforesaid. A copy of the said certificate is hereto annexed and is
made a part hereof.
Second. Thereafter such proceedings were had that on the twenty-
ninth day of June, T.S91, at a meeting of the stockholders duly and
regularly called for that purpose in accordance with the statute in
such case made and provided, there was duly adopted by stockholders
owning and holding more than two-thirds of the stock of your peti-
tioner a resolution authorizing an increase of the amount of the
capital stock of your petitioner from the sum of tu<o million dollars
(2,000,000), to the sum of two million five hundred thousand dollars
(2,500,000). On the twenty-seventh day of January, i892, a certifi-
cate, setting forth the said resolution and the proceedings had at the
said meeting, duly executed and acknowledged by A. R. Meyer as
chairman and Edward Brush as secretary of said meeting, was duly
filed, in the office of the clerk of the city and county of New York.
On the twenty-sixth day of January, i&92, a duplicate of the said
certificate was duly filed in the office of the said secretary. Prior to
the filing of such last mentioned duplicate certificate in the office of
the said secretary the sum of six hundred and twenty -five dollars ($625)
was paid by your petitioner to, and was received by, the said treas-
urer in full payment of the tax of one-eighth of one per cent, upon the
amount of such increase, to wit, the sum oifive hundred thousand dollars
($500,000), required by the said chapter 143 of the Laws of 1886 of
the state of New York for the privilege of such increase. A copy of
the said last mentioned certificate is hereto annexed and is made a
part hereof.
Third. Thereafter such proceedings were had that on the twenty-
fifth day of January, iS94, at a meeting of the stockholders duly and
regularly called for that purpose, in accordance with the statute in
such case made and provided, there was duly adopted by stock-
holders owning and holding more than two-thirds of the stock of
your petitioner a resolution authorizing an increase of the amount of
638 Volume 5.
6417. CORPORA TIONS. 6417.
the capital stock of your petitioner from the sum of two million five
hundred thousand dollars ($2,500,000) to the sum of three million five
hundred thousand dollars ($3,500,000). On the sixteenth day of March,
1 894, a certificate setting forth the said resolution and the proceedings
had at the said meeting, duly executed and acknowledged by Nathaniel
Wit her ell as chairman and Edward Brush as secretary of said meet-
ing, was duly filed in the office of the clerk of the city and county of
New York. On the fourteenth day of March, i894, a duplicate of the
said certificate was duly filed in the office of the said secretary.
Prior to the filing of such last mentioned duplicate certificate in the
office of the said secretary the sum of twelve hundred and fifty dollars
($1250) was paid by your petitioner to, and was received by, the
said treasurer in full payment of the tax of one-eighth of one per cent,
upon the amount of such last mentioned increase, to wit, the sum
of one million dollars ($1,000,000), required by the said chapter 143
of the Laws of 1886 of the State of New York for the privilege of
such increase. A copy of the said last mentioned certificate is hereto
annexed and is made a part hereof.
Fourth. Thereafter such proceedings were had that on the fourth
day of June, iS96, at a meeting of the stockholders duly and regu-
larly called for that purpose, in accordance with the statute in such
case made and provided, there was duly adopted by stockholders
owning and holding more than two-thirds of the stock of your peti-
tioner a resolution authorizing an increase of the amount of the
capital stock of your petitioner from the sum of three million five
hundred thousand dollars ($5, 500,000) to the sum of four million five
hundred thousand dollars ($4,500,000). On or about the twelfth
day of June, iS96, a certificate setting forth the said resolu-
tion and the proceedings had at the said meeting duly executed and
acknowledged by Nathaniel Witherell as chairman and Edward Brush
as secretary of said meeting, was duly filed in the office of the clerk
of the city and county of New York. On the eleventh day of June,
i&96, a duplicate of the said certificate was duly filed in the office of
the said secretary. Prior to the filing of such last mentioned dupli-
cate certificate in the office of the said secretary, the sum of twelve
hundred and fifty dollars ($1250) was paid by your petitioner to, and
was received by, the said treasurer in full payment of the tax of one-
eighth of one per cent, upon the amount of such last mentioned increase,
to wit, the sum of one million dollars ($1,000,000) required by the
said chapter 143 of the Laws of 1886 of the State of New York, for
the privilege of such increase. A copy of the said last mentioned
certificate is hereto annexed and is made a part hereof.
Fifth. On the fourth day of June, i896, at a special meeting of the
stockholders of your petitioner, duly and regularly called by the trus-
tees of your petitioner in accordance with the statute in such case made
and provided, that is to say, the statute of the state of New York known
as the Business Corporations law, being chapter 691 of the Laws of
1892 as amended by chapter 671 of the laws of 1895, for the pur-
pose of voting upon the proposition to reincorporate your petitioner
under the said Business Corporations law, the following resolution
was duly adopted by stockholders owning and holding more than two-
639 Volume 5.
6417.
CORPORA TIONS.
6417.
thirds of all the stock of your petitioner: {Here was set out copy of
resolution. ) x
A certificate, setting forth the said resolution, the proceedings
had at the said meeting, a copy of the notice thereof and the
manner of its service, and containing the certificate required by
sections four and two of the said statute, and also a duplicate of such
certificate, were thereupon duly made, executed and acknowledged,
in accordance with the provisions of the said statute, by A. Foster
Higgins as chairman and Edward Brush as secretary thereof. A copy
of said certificate is hereto annexed and is made a part hereof. On
the twenty-second day of July, iS96, the said certificate was duly
tendered to the said secretary, together with the sum of fourteen and
fifty one-hundredths dollars ($14.50), the amount in full of his fee for
filing and recording the same, and at the same time he was requested
by or on behalf of your petitioner to file and record the said certifi-
cate in his office, as required by the said statute. The said secretary
received and has retained the said sum of fourteen and fifty one-hun-
dredths dollars ($-/.. 5#). He has refused, however, and he still
refuses, either to file or to record the said certificate, assigning and he
did assign, and does assign, as the sole reason for such refusal, the
failure on the part of your petitioner to pay to the state treasurer
the sum of five thousand six hundred and twenty-five dollars (5,625),
being a tax of one-eighth of one per cent, on the amount of your peti-
1. The resolution referred to in the text
was as follows:
" Resolved, That this corporation be
reincorporated under the statute of the
state of New York known as the Busi-
ness Corporation law, being chapter 691
of the Laws of 1892 as amended by chap-
ter 671 of the Laws of 1895. Resolved,
That the capital stock of the reincor-
porated company shall be four million
five hundred thousand dollars ($4^500,-
ooo), divided into shares and with pref-
erences and privileges as stated in the
certificate hereinafter directed; and that
the name of the company, the purpose
for which it is to be formed, the loca-
tion of its principal business office, its
duration, and the number of its direc-
tors shall also be as stated in the cer-
tificate hereinafter directed to be exe-
cuted. Resolved, That the officers of
this meeting and the officers of this
company be, and they hereby are, di-
rected to execute a certificate of the
proceedings of this meeting in con-
formity with the provisions of the
said Business Corporation law; which
certificate, in addition to such other
matters as may be required by law,
shall contain in substance the following
clauses:
1. (Name of corporation reincorporated.)
2. (Purposes of incorporation.)
3. (Amount and classification of capital
stock; stating preferences; attributes of
preferred stock, etc.)
4. (A umber of shares, and par value
of each.}
5. (Amount of capital with -which to
commence business.)
6. Location of principal business office.}
7. Its duration to be one hundred
years.
8. The number of its directors is
eleven.
9. The names and post-office ad-
dresses of the directors for the first year
are respectively as follows (names and
post-office addresses).
10. In case any increase of the cor-
porate stock shall hereafter be author-
ized, and such increased stock shall be
used, the corporation may grant to such
new stock such preference over the
common stock as shall be determined
by the vote of a majority of the stock-
holders in meeting assembled; provided,
however, that the preferred stock here-
inbefore refered to, amounting in all to
the sum oitwo million dollars ($2, 000,000)
in par value, shall never lose its prefer-
ence over all other stock of the company,
issued or to be issued, without the writ-
ten concurrence to that effect of the
holders of three-fourths of such preferred
stock then outstanding."
640
Volume 5.
6418. CORPORA TIONS. 64 1 8.
tioner's capital stock, to wit, the sum Q{ four million five hundred thou-
sand ^c\\^.r% ($4,500,000) claimed by the said secretary to be due from
your petitioner under the said chapter 143 of the Laws of 1886. As
your petitioner is informed and believes, the total amount of such
tax has already been paid by your petitioner to the said treasurer, as
is hereinbefore set forth, and neither the said sum of five thousand six
hundred and twenty-five dollars ($<5,##5) nor any part thereof is due
from your petitioner to the said treasurer, and, as your petitioner
is further informed and believes, it is the present official duty of the
said secretary to receive the said certificate and to file and record
the same, which duty he refuses to perform.
Wherefore, your petitioner prays from this honorable court an
order directing that there issue out of and under the seal of said
court a peremptory writ of mandamus requiring and compelling the
said secretary to receive the said certificate and to file and record
the same and for such other and further relief as may be just.
Dated New York City, September 18, i896.
Con I Kansas City Smelting and Refg. Co.
By -Edward Brush, A. Sec'y.
(Verification^-
b. Answer of Secretary of State to Order to Show Cause.
Form No. 6418.*
Supreme Court, Albany County.
The People ex rel. Carl Schurz et at., }
against
Frederick Cook, Secretary of State, etc. )
And now comes the said Frederick Cook, as secretary of state, by
D. O'Brien, attorney-general, and for answer to the application of
the said relator and in answer to the order to show cause made herein,
makes and states the following objections to the filing of the certifi-
cate 3 referred to in the moving papers herein, as good and valid
reasons for his refusal to file the same:
1. See the title VERIFICATIONS. zation subject to the payment of the
2. This answer to the order to show corporation tax.
cause is copied from the record in the 8. The certificate of organization of the
case of People v. Cook, no N. Y. 443, Western New York and Pennsylvania
On appeal from the general term of the Railway Company of New York, as
supreme court affirming the special appears in the record of the case of
term denying the motion of the relators People i>. Cook, no N. Y. 443, is as
in this case for a peremptory writ of follows:
mandamus directed to the secretary of "Whereas, on the loth day of Sep-
state to require him to file in his office tember, i8c5y, under and in pursuance
a certificate of organization of certain of a judgment of the Supreme Court of
railroad companies organized under the State of New York, entered in the
the Reorganization act of New York office of the Clerk of Erie County, dated
(Laws (1874), c. 430, as amended Laws June ijth, i8?, in a suit therein pend-
(1876), c. 446), the orders of both the ing wherein Henry Martin and Frank-
general and special terms were affirmed lin D. Locke were plaintiffs, and the
and the motion for mandamus denied, Buffalo, New York and Philadelphia
the court holding that a new corpora- Railway Company, the Buffalo, New
tion had been created by the reorgani- York and Philadelphia Railroad Com-
e E. of F. P. 41. 041 Volume $.
6418.
CORPORA TIONS.
6418.
I.
That the said company offering the said certificate, to wit, the
Western New York and Pennsylvania Railway Company of New York,
refused and still neglects and refuses to pay the tax of one-eighth of
one per cent, upon the amount of capital stock which said company is
authorized to have or upon the increase thereof, in accordance with
chapter 143 of the Laws of 1886.
II.
Said articles or certificate of incorporation, so offered, are defec-
tive and insufficient in law for the following reasons:
The said company has decreased the capital stock of the corpora-
tion sold by the judgment of the court referred to in the moving
papers from twenty million three hundred and fifty thousand dollars to
the sum of fifteen million dollars as the maximum amount, without
pany and others were defendants, which
judgment was made or given to execute
the provisions and enforce the lien of a
mbrtgage or deed of trust executed by
the Buffalo, New York and Philadelphia
Railway Company to Joseph Seligman
and Henry Martin, dated July i, 1877,
William L. Marcy, Esq., as Referee,
sold at public auction: All the railroad
formerly of the said The Buffalo, New
York and Philadelphia Railway Com-
pany, and forming part of the railroad
of the Buffalo, New York and Philadel-
phia Railroad Company, beginning at
(Here was inserted description of line of
railroad}, and all and singular the right
of way of said company, and the lands,
real estate, rails, tracks, bridges, build-
ings, depots, station-houses, shops,
warehouses, structures, erections, fix-
tures and appurtenances thereunto be-
longing, or in anywise appertaining,
and also all the locomotives, engines,
tenders, carriages, shop tools and ma-
chinery, and all the franchises, rights
and privileges, and all other property,
real or personal, of the said Railway
Company, and also all the estate, right,
title, interest, property, possession,
claim and demand whatsoever, as well
in law as in equity, of the said Rail-
way Company, of, in and to the same
and every part and parcel thereof, with
the appurtenances;
And whereas, on the i$th day of
September, i8<$^, under and in pursu-
ance of a decree of the Circuit Court of
the United States for the Western Dis-
trict of Pennsylvania, dated May 14,
i8<S7, i a suit therein pending wherein
Archer N. Martin was complainant
and the Buffalo, New York and Phila-
delphia Railroad Company and the Fidel-
ity Insurance Trust and Safe Deposit
Company were defendants, and under
and in pursuance of a decree of the
Circuit Court of the United States for
the Northern District of New York,
dated June n, i8<?7, in a suit therein
pending between the same parties,
which decrees were made and given to
execute the provisions and enforce the
lien of a mortgage or deed of trust
executed by the Buffalo, Pittsburgh and
Western Railroad Company to the Fidelity
Insurance Trust and Safe Deposit Com-
pany,^ dated April i, i&Sf, Sussex D.
Davis, Esq., as Special Master, sold at
public auction all and singular the
entire line of railway of the Buffalo,
Pittsburgh and Western Railroad Com-
pany, now part of the Buffalo, New
York and Philadelphia Railroad, being
partly situate in the State of New York
and partly in the State of Pennsylvania,
together with all branch lines, and
more particularly described as follows,
that is to say: (description of railroad
property sold).
And whereas, on the i^th day of Sep-
tember, i8<$y, under and in pursuance
of a decree of the Circuit Court of the
United States for the Western District of
Pennsylvania, dated May i4th, 1887, m
a suit wherein the United States J^rust
Company was complainant, and the
Buffalo, New York and Philadelphia
Railway Company, the Buffalo, New
York and Philadelphia Railroad Com-
pany and others were defendants, and
under and in pursuance of a judgment
of the Supreme Court of the State of
New York, entered in the office of the
Clerk of Erie County, dated June fj,
iScS/, in a suit therein pending between
the same parties, which decree and
643
Volume 5.
6418.
ORPORA TIONS.
6418.
the approval of the comptroller, and contrary to and without a com-
pliance with the provisions of chapter 264 of the Laws of 1878 as
amended by chapter 306, Laws of 1882.
. III.
And the said certificate of incorporation proposed to be filed is
defective and not in compliance with the provisions of chapter 446 of
the Laws of 1876, in that neither the said certificate or articles and
agreement contain suitable provisions enabling the bondholders
therein mentioned to vote by proxy, as provided by section one of
said act.
Albany, October 13, i87.
D. O'Brien, Attorney-General, for Deft.
judgment were made and given to exe-
cute the provisions and enforce the
lien of a mortgage or deed of trust exe-
cuted by the Buffalo, New York and
Philadelphia Railway Company to the
United States Trust Company, dated July
i, i8<?; Sussex D. Davis, Esq., as Spe-
cial Master and Referee, sold at public
auction all and singular the entire line
of the Buffalo, New York and Philadel-
phia Railway Company, and of its suc-
cessor, the Buffalo, New York and
Philadelphia Railroad Company, being
partly situate in the State of New York
and partly in the State of Pennsylvania,
more particularly described as follows,
that is to say: (description of roads and
property sold).
And whereas, on the fjth day of
September, 1887, under and in pursu-
ance of a decree of the Circuit Court of
the United States for the Western Dis-
trict of Pennsylvania, dated May 14,
l8<5y, in a suit therein pending wherein
Edward W. Kinsley was complainant
and the Buffalo, New York and Phila-
delphia Railroad Company and the Fi-
delity Insurance Trust and Safe Deposit
Company were defendants, and under
and in pursuance of a decree of the
Circuit Court of the United States for the
Northern District of New York, dated
June n, i8<?7, in a suit therein pend-
ing between the same parties, which
decrees were made to execute the pro-
visions and enforce the lien of a mort-
gage or deed of trust executed by the
Buffalo, New York and Philadelphia
Railroad Company to the Fidelity Insur-
ance Trust and Safe Deposit Company,
dated January i, i8<K/, Sussex D. Davis,
Esq., as Special Master, sold all and
singular the entire line or lines of rail-
road of the Buffalo, New York and
Philadelphia Railroad Company, being
partly situate in the State of New York
and partly in the State of Pennsylvania*
as the same now is located or con
structed, and more particularly de-
scribed as follows, that is to say:
(description of railroad property sold).
And whereas, Carl Schurz, Clarence
H. Clark, Charles M. Fry, Isaac N.
Seligman and T. H. Adrian Tromp,
became the purchasers of all the rail-
roads, property and franchises sold at
the several sales before mentioned;
And whereas, The Buffalo, New York
and Philadelphia Railway Company was
a corporation organized under an Act
of the Legislature of the State of New
York, known as Chapter 672 of the
Laws of 1866, and entitled 'An Act for
the consolidation of the Buffalo and
Washington Railway Company with the
Sinnomahoning Portage Railroad Com-
pany of Pennsylvania,' passed April 18,
1866, and under the Laws of Pennsyl-
vania;
And whereas, The Buffalo, Pittsburgh
and Western Railroad Company was a
corporation organized under an Act of
the Legislature of the State of New York r
known as Chapter 917 of the Laws of
1869, entitled 'An Act authorizing the
consolidation of certain railroad com-
panies,' passed May 20, 1869, and of
the acts amendatory thereof and sup-
plementary thereto, and of an Act of
the said Legislature known as Chapter
256 of the Laws of 1875, entitled 'An
Act relating to the consolidation of
certain railroad companies,' passed
May 7, 1875, and of the acts amenda-
tory thereof and supplementary there-
to, and under the Laws of Pennsylvania ;
And whereas, The Buffalo, New York
and Philadelphia Railroad Company was
a corporation organized under the said
Act of the Legislature of the State of
New York, known as Chapter 917 of
the Laws of 1869, and of the acts amend-
643
Volume 5.
6419.
CORPORA TIONS.
6419.
2. Proceeding's against. 1
a. To Recover Bonds and Prevent Issue of Other Bonds.
Form No. 6419.-
To the Circuit Court for the County of Berrien. In Chancery.
Your orator, William Dester, assignee of Reeves, Patterson and
atory thereof and supplementary there-
to, and under the said Act of the said
Legislature known as Chapter 256 of
the Laws of 1875, and amendatory
thereof and supplementary thereto, and
under and in pursuance of the Laws of
Pennsylvania ;
And whereas, The said purchasers
have acquired title to the railroad prop-
erty and franchises sold as aforesaid,
pursuant to a plan or agreement for or
in anticipation of the readjustment of
the respective interests therein of the
mortgage creditors and stockholders of
the Buffalo, New York and Philadelphia
Railroad Company, -the company which
last owned such property and fran-
chises at the time of the said sales, and
for the representation of such interests
of creditors and stockholders in the new
corporation to be formed, which plan
or agreement is hereinafter set forth;
And whereas, The said purchasers
have associated with themselves George
Zabriskie (names of other associates);
Now, therefore, the said Carl Schurz,
Clarence H. Clark, Charles M. Fry, Isaac
N. Seligman and T. H. Adrian Tromp,
the said purchasers, and their said asso-
ciates above named, hereby certify that
they have associated themselves to-
gether under and in pursuance of an
Act of the Legislature of the State of
New York, known as Chapter 430 of
the Laws of 1874, entitled 'An Act to
facilitate the reorganization of railroads
sold under mortgage, and providing
for the formation of new companies in
such cases,' passed May n, 1874, and
the acts amendatory thereof and sup-
plementary thereto, for the purpose of
becoming and being a body politic and
corporate, and as such, of taking, hold-
ing and possessing the railroads, titles
and properties included in the aforesaid
sales, and all the franchises, rights,
powers, privileges and immunities
which were possessed before such sales
by the Buffalo, New York and Philadel-
phia Railroad Company, or by G. Clinton
Gardner, its Receiver, or by the Buffalo,
New York and Philadelphia Railway
Company, or by the Buffalo, Pittsburgh
and Western Railroad Company; and do
further certify:
That the name of the new corporation
intended to be formed by the filing of
this certificate is ' Western New York
and Pennsylvania Railway Company of
New York ' ;
That the maximum amount of the
capital stock of the said new corpora-
tion is fifteen million dollars, and the
number of shares into which the same
is to be divided is one hundred and
fifty thousand, all of which shall be
common stock;
That the number of directors by
whom the affairs of the said new cor-
poration is to be managed is thirteen,
and that the names and residences of
the persons selected to act as directors
for the first year of its organization are:
(names and residences of directors).
That these articles may be altered or
amended from time to time, and in such
manner as the holders of two-thirds of
the stock of the company may direct or
approve;
That the aforesaid plan or agreement
for readjustment is as follows: (Here
was set out the agreement for adjustment.)
In witness whereof, the subscribers
have hereunto set their hands and seals
the 3Oth day of September, i&&f." (Sig-
natures, seals and acknowledgment.)"
1. Proceedings by and against corpora-
tions, generally, see supra, note I,
P- 527.
2. This bill is based upon the facts in
Dester v. Ross, 85 Mich. 375. By it
plaintiff sought to compel the discharge
of two mortgages executed by the St.
Joseph Valley Railroad Company and
held by Albert F. Ross and William R.
Rough and Ed. M. Rough, as execu-
tors. The court duly overruled a gen-
eral demurrer interposed to the bill,
which ruling was sustained on appeal,
the court holding that a case of equi-
table relief was made out by the bill..
For formal parts of bills in equity, gen-
erally, see the title BILLS IN EQUITY,
vol. 3, p. 417; of complaints or petitions,
generally, see the title COMPLAINTS, vol.
4, p. 1019.
644
Volume 5.
64 1 9. CORPORA TIONS. 6419.
Company, brings this bill as plaintiff against Alfred F. Ross, cashier
Farmers and Merchants" Bank of Buchanan, and William R. Rough
and Ed. M. Rough, executors of George H. Rough, deceased, Charles A.
Johnson, Jonas J. Burns, the St. Joseph Valley Railway Company, and
the American Loan and Trust Company, as defendants.
Thereupon plaintiff avers:
I. That the defendant, the St. Joseph Valley Railroad Company, is a
corporation which was duly formed, organized and incorporated under
and by virtue of the laws of this state.
II. That said St. Joseph Valley Railroad Company became insolvent on
the twentieth day of January, i8<ft>, and thereupon in due course of law
passed into the hands of a receiver.
III. That the said St. Joseph Valley Railroad Company had, prior to
the twentieth day of January, 1886, operated a narrow-gauge railroad
between Buchanan and Berrien Springs, in this state, a distance of ten
miles.
IV. That the said St. Joseph Valley Railroad Company had, to wit,
prior to the said twentieth day of January, i&86, made, executed and
delivered two certain mortgages, each for about the sum of twenty
thousand dollars, one made, executed and delivered some time in
November, i880, to and in favor of the said defendant, A If red F. Ross,
and the other made, executed and delivered some time in January,
1883, to one George H. Rough.
V. That the said George H. Rough died on the tenth day of May,
1884, leaving a last will and testament, whereby the said defendants,
William R. Rough and Ed. M. Rough, were appointed as executors of
said last will and testament, and that the said George H. Rough was,
at the time of his death, a resident of Berrien county, Michigan, and
that on the first day of June, 1884, said last will and testament of the
said George H. Rough, deceased, was duly proved in the Probate Court
of the said county of Berrien, in the state of Michigan, and duly admit-
ted to probate by said court; and that immediately thereafter, on the
first day of June, 1884, letters testamentary were regularly and duly
issued by said Probate Court to the said William R. Rough and Ed. M.
Rough, said defendants, the said executors named in said last will and
testament, and that the said defendants, William R. Rough and Ed. M.
Rough, thereupon duly qualified and entered upon the discharge of the
said duties of their said office as said executors, and ever since that
time have been and are now, and were at the times hereinafter men-
tioned, acting as such executors.
VI. That the sa\dl?0ss has assigned an undivided one-half of his
said mortgage unto the said William R. Rough and Ed. M. Rough, the
said defendants and said executors, and that they, the said William
R. Rough and Ed. M. Rough, the said defendants and said executors,
have assigned unto the said Ross an undivided half of the said mort-
gage made, executed and delivered to the said George H. Ross by the
said St. Joseph Valley Railroad Company as hereinabove mentioned.
VII. That on the twentieth day of April, i8cP9, all that remained of
the property and effects of the St. Joseph Valley Railroad Company was
ten miles of unused right of way, the road-bed, and the iron rails
thereon.
645 Volume 5.
64 1 9. CORPORA TIONS. 64 1 9.
VIII. That on the twentieth day of April, iS89, the said defend-
ants, Ross, William R. Rough and Ed. M. Rough, as parties of the
first part, and Jonas J. Burns, party of the second part, entered
into a written agreement, by the terms of which Burns was to bid
in the title, rights, franchises and property of the said railroad com-
pany at the receiver's sale thereof, which had been fixed for the
seventh day of May following; that within thirty days thereafter he,
the said Burns, would rebuild and reconstruct said road as a standard-
gauge road, and within ninety days the same should be finished and
in operation between Buchanan and Berrien Springs. That in con-
sideration of the premises, the parties of the first part agreed to
execute and place in the hands of defendant Charles A. Johnson dis-
charges of the mortgages held by them, and also of a judgment
which defendant Ross held. That in consideration of these releases,
Burns agreed that a mortgage executed by the legal corporation
then owning said road, for the sum of fifty thousand dollars, should
be placed thereon, to secure fifty bonds of one thousand dollars each,
running thirty ^ years, ztfive per cent., and that sixteen of said bonds
should be delivered to said Johnson, eight for said Ross, and eight for
the said William R. Rough and Ed. M. Rough.
IX. That the receiver's sale was had, and said Burns bid in all the
said railroad property, franchises, etc., and received a conveyance
thereof. That a new corporation was formed, to be known as the
" St. Joseph Valley Railway Company,'" to construct and operate said
road from Buchanan to Berrien Springs, and to extend the same
southerly to South Bend, Indiana, and northerly to St. Joseph or Benton
Harbor-, and the title to all the property acquired at said receiver's
sale was conveyed by Burns to said new company.
X. That within the ninety days named in said agreement the said
road had been reconstructed as a broad-gauge road, at an expense
of about thirty thousand dollars, and regular trains were running
thereon, carrying passengers and freight between Buchanan and
Berrien Springs.
XI. That at a meeting of the stockholders of said company held
on the first day of August, iS89, the following preamble and
resolutions -were unanimously adopted: (ffere was set out copy of
resolutions.^
1. Resolutions referred to in the text sary, of the denomination of one thou-
were as follows: sand dollars each, bearing 5 per cent.
"Whereas, it is necessary for this per annum interest, payable semiannu-
company to borrow money or pledge ally, and running jo years from date,
its credit for the purpose of securing which said mortgage and bonds shall
money to construct and complete its bear date of August /, i%8g. It is fur-
road; therefore be it Resolved, That the ther Resolved, That the amount of
board of directors are hereby author- bonds to be issued on the railroad of said
ized, empowered and directed to exe- railway company between the villages
cute a mortgage covering all the of Buc hanan and Berrien Springs be lim-
property of the company in the State ited to fifty thousand dollars ($30,000),
of Michigan in a sum not exceeding and that no further sum shall be issued
$/0,00o per mile of completed road, on the aforesaid portion of the railroad
and to issue bonds of this company, of the said railway company without
secured by said mortgage, from time the consent of all the holders of the
to time, as may be proper and neces- aforesaid bonds, numbered one to fifty,
646 Volume 5.
6419. CORPORA TIONS. 6419.
XII. That pursuant to authority conferred by said resolutions,
the board of directors, on the first day of August, i889, executed
and delivered to the American Loan and Trust Company of New York,
as trustee, a mortgage upon ajl the property of said railway com-
pany, and all further extensions thereof, without specifying the
amount for which given, but providing that it was to secure bonds
to be certified and issued by said trustee to said railway company,
"not exceeding at any time, in either certification^ or .delivery,
10,000 for each mile of such railroad completed so that cars may
be run thereon," and further providing that the said bonds should
be certified and issued only "upon the written application of the
railway company, expressed through a resolution of its board of
directors or its executive committee, adopted at a regular meeting,
or at a special meeting called for that purpose."
XIII. That one hundred bonds were printed, but fifty of which
have been certified and issued. That sixteen of said bonds have
been delivered to Charles A. Johnson under said agreement. That
the said Ross and the said William R. and Ed. M. Rough have exe-
cuted and delivered to said Johnson discharges of the aforesaid
mortgages, but have refused to accept said bonds, and have directed
said Johnson not to deliver to the St. Joseph Valley Railway Company
the discharges of said mortgages.
XIV. That, after the execution of the aforesaid agreement
between said mortgagees and said Burns, the latter applied to
Reeves, Patterson and Company, complainant's assignors, for moneys
with which to reconstruct the said road, and that said Reeves, Pat-
terson and Company, relying upon the performance of said agreement
by both parties thereto, advanced the sum of twenty thousand six
hundred and twenty dollars, which moneys were used in the recon-
struction of said road; that because of the furnishing of said moneys,
and the refusal of the said mortgagees to discharge said mortgages
as agreed, the said Reeves, Patterson and Company became embar-
rassed financially, and indebted to banking houses at Chicago and
elsewhere, and finally made an assignment to complainant.
XV. That, to secure said Reeves, Patterson and Company, certain
of said bonds were delivered to them, and others were purchased by
them, and all of said bonds so issued and all so purchased, aggre-
gating in amount thirty-four thousand dollars, were hypothecated by
said Reeves, Patterson and Company to secure their creditors; that
the fifty bonds printed, but not certified by said trustee, as afore-
said, have not been used, but are in the safe of the said Reeves, Pat-
terson and Company, and can be surrendered to be destroyed if the
court shall so order.
XVI. That no attempt has been made to negotiate said fifty
bonds, except that some negotiations have been had with said Ross
and the Roughs, whereby a few of them could be used, but the nego-
tiations fell through.
XVII. That since the appointment of complainant as assignee he
has prosecuted said claim to judgment against the St. Joseph Valley
inclusive. And be it further Resolved, Company be, and is hereby, made the
That the American Loan and Trust trustee of said mortgage."
647 Volume 5.
6420. CORPORATIONS, 6420.
Railway Company, upon which an execution has been issued, which
has been levied upon all the property of said railway company.
XVIII. That if the agreement aforesaid is carried out, and said
mortgages discharged, complainant will be able to pay in full all the
creditors of said Reeves, Patterson and Company; otherwise he will not
be able to pay more than ten or fifteen cents on the dollar of that
indebtedness.
XIX. That a large amount of aid has been pledged to said rail-
way company, and in case said mortgages are discharged, the bonds
issued, and the said contract performed according to its terms,
that the said railway company will be able to pay the aforesaid judg-
ment and the bonds in full.
XX. That said Reeves, Patterson and Company were not aware that
the said mortgage was for more than fifty thousand dollars, but always
understood that the said Burns and the new company organized by
him were carrying out said agreement according to its terms.
Wherefore plaintiff prays,
I. That the fifty thousand dollars in bonds that have not been cer-
tified be delivered up for cancellation; that the railway company may
be enjoined from issuing any other or further bonds than the fifty
thousand dollars upon said ten miles of road already certified, except
with the consent of all of the holders of said bonds.
II. That said company and said Burns may be required and
decreed to perform the aforesaid contract.
III. That the mortgagees aforesaid may be ordered to discharge
the said mortgages.
IV. That said Charles A. Johnson be directed to deliver over to
said mortgagees the sixteen bonds in question.
V. That the American Loan and Trust Company of New York be
directed to certify no more bonds except upon the order of the court.
William Dester.
Oliver Ellsworth, Solicitor and of Counsel for Plaintiff.
( Verification^-
b. Answer Alleging Nonliability.
Form No. 6420.*
City Court of New York.
William Fernschild, plaintiff, )
against > Answer.
D. G. Yuengling Brewing Company, defendant. )
The defendant answering the complaint herein by Guggenheimer,
1. See the title VERIFICATIONS. court and in the general term of the
2. This answer is copied from the record same court, but in the appellate term
in Fernschild v. D. G. Yuengling Brew- of the supreme court in the city of New-
ing Co. , 15 N. Y. App. Div. 29. The York, which succeeded the court of
plaintiff brought action against the common pleas as a reviewing tribunal
reorganized company to recover the in cases from the city court, it was held
amountof securities held by him against that plaintiff was entitled to judgment,
the pre-existing company. Defendant On appeal, however, of the appellate di-
prevailed at the trial term of the city vision, the judgment of the appellate
648 Volume 5.
6420. CORPORATIONS. 6420.
Untermyer 6- Marshall, its attorneys, respectfully shows to this court
as follows:
First. It denies all knowledge or information sufficient to form a
belief as to the allegations contained in paragraphs first, second and
third of the complaint.
Second. It admits that it acquired title to the property sold under
the foreclosure sale referred to in paragraph fourth of the complaint,
but denies that in consideration of a bill of sale duly executed,, con-
veying to the defendant certain personal property, effects and chat-
tels, including the stock in trade, good- will and book accounts of the
D. G. Yuengling, Jr., Brewing Company^ this defendant assumed cer-
tain debts, obligations and liabilities of said D. G. Yuengling, Jr.,
Brewing Company, among which was the indebtedness due to the
plaintiff as alleged in paragraph fourth of the complaint at folios 9
and 10 thereof, but alleges that it did not then or at any other time
assume the debts and obligations of the D. G. Yuengling, Jr., Brew-
ing Company, nor did it then or at any other time promise or agree
to pay the said debts or the indebtedness due the plaintiff herein.
Third. This defendant denies that, at the time of the delivery of
the bill of sale and transfer thereunder, and in consideration thereof,
as alleged in paragraph fourth of the complaint, the defendant duly
passed a resolution, a copy of which is set forth in the complaint at
folios 10, 11 and 12 in paragraph fourth thereof; and it further denies
that the indebtedness due the plaintiffs as aforesaid was, by the said
resolution and agreement, or by any resolution or agreement, of the
defendant, assumed by it.
For a defense to the second cause of action set forth in the com-
plaint the defendant alleges.
Fourth. It denies all knowledge or information sufficient to form
a belief as to the allegations contained in paragraphs fifth, sixth and
seventh of the complaint.
Fifth. It admits that it acquired title to the property sold under
the foreclosure sale referred to in paragraph eighth of the complaint,
but denies that, in consideration of a bill of sale duly executed con-
veying to the defendant certain personal property, effects and chat-
tels, including the stock in trade, good-will and book accounts of the
D. G. Yuengling, Jr., Brewing Company, this defendant assumed cer-
tain debts, obligations and liabilities of said D. G. Yuengling, Jr.,
Brewing Company, among which was the indebtedness due to the
plaintiff as alleged in paragraph eighth of the complaint, at folios 20
and 21 thereof; but alleges that it did not then, or at any other time,
assume the debts and obligations of the D. G. Yuengling, Jr., Brew-
ing Company, nor did it then, or at any other times, promise or agree
to pay the said debts or the indebtedness due the plaintiff herein.
term was reversed, and the judgment of provided for in the plan of reorganiza-
the general term of the city of New York tion, the reorganized company was not
was affirmed, the court holding that bound to pay the mortgage bonds of
where the reorganized corporation ac- the old company.
cepted a bill of sale of assets of the old For formal parts of answers, gener-
corporation and covenanted to assume ally, consult the title ANSWERS IN CODE
hs debts, except mortgage bonds and ex- PLEADING, vol. i, p. 799.
cepting all other indebtedness otherwise
649 Volume 5.
6421. CORPORATIONS. 6421.
Sixth. This defendant denies that at the time of the delivery of
the bill of sale and transfer thereunder, and in consideration thereof,
as alleged in paragraph eighth of the complaint, the defendant duly
passed a resolution, a copy of which is set forth in the complaint at
folios 22, 23 and 24 in paragraph eighth thereof; and it further denies
that the indebtedness due the plaintiff as aforesaid was by said
resolution and agreement or by any resolution or agreement of the
defendant, assumed by it.
Wherefore the defendant demands judgment dismissing the com-
plaint herein, with costs.
Guggenheimer , Untermyer cr Marshall,
Attorneys for defendant,
46 Wall Street, New York City.
( Verification^-
e. Answer of Reorganization Committee to an Attack upon their
Powers.
Form No. 6421 .*
Supreme Court, Kings County.
Josiah J. White, plaintiff, *)
George C. Wood, Samuel D. Davis, Jerry Collins \ Amended Answer.
and Anson Maltby, defendants.
The defendants above named answering the complaint by their
amended answer, respectfully say:
I. The defendants admit that the plaintiff purchased seven " Sink-
ing Fund" bonds and twenty " Gold Mortgage " bonds issued by the
Chattaroi Railway Company, but they aver that they have not any
knowledge or information sufficient to form a belief as to the truth
of the allegations that the plaintiff continued to own said bonds up
to the time of the foreclosure by the Union Trust Company of the city
of New York of the mortgages made to secure the payment of said
bonds or that plaintiff holds and owns said bonds, and therefore they
deny the same.
II. They deny that said Union Trust Company began a suit to fore-
close said mortgages in the United States Circuit Court for the Dis-
trict of Kentucky in or about the year i8<97, and they aver that the
said trust company began said suit long prior to the year i8#7, to
wit, in the year i85.
1. See the title VERIFICATIONS. appeal, however, to the court of ap-
2. This answer is copied from the record peals the judgment was reversed on
in the case of White v. Wood, 129 N. the theory that the evidence did not
Y. 527. That was a proceeding to show bad faith on the part of the de-
restrain defendants from conveying or fendants, but, on the contrary, showed
turning over the franchise and prop- that they acted in good faith.
erty of the Chattaroi Railway Company For formal parts of answers, gener-
to any person or corporation except the ally, see the titles ANSWERS IN CODE
Ohio and Big Sandy Railroad Company. PLEADING, vol. i, p. 799; ANSWERS in
Decision was in favor of the plaintiff in EQUITY, vol. i, p. 854; of pleas, gener-
special term, which was affirmed in the ally, see the title PLEAS.
general term of the supreme court. On
650 Volume 5.
6421. CORPORATIONS. 6421.
III. They deny that they entered into any trust or other agree-
ment with the holders of " Sinking Fund" and " Gold Mortgage"
bonds issued by the said Chattaroi Railway Company whereby they
agreed after purchasing the property of the said Chattaroi Raihuay
Company, on foreclosure sale under the mortgages given by said
Chattaroi Railway Company, to secure said bonds, and after forming a
new corporation to take possession of and operate the property of
said Chattaroi Railway Company that they would or were required to
distribute all of the stock of the said new company among the holders
of the said bonds pro rata according to the holdings of each.
IV. They deny that the deed of conveyance under any judicial
sale of the franchise and property of the said Chattaroi Railway Com-
pany was executed or delivered to them, as joint tenants or otherwise,
on or about the fourteenth day of May, iS87, and they deny that on
or about said date they took possession of said franchise and said
property or have ever since been operating the railway, and have
been receiving the incomes and revenues thereof, but they aver that
such delivery was made the latter part of April, i8<5?#, since which
time they have been in possession of and have operated said railroad
until the twenty-fourth day of August, iS89.
V. They deny that they did in or about the month of July, i889,
organize a new corporation under the laws of the state of Kentucky,
naming it the Ohio and Big Sandy Railroad Company, and making its
capital stock tivo million dollars, divided into shares of one hundred
dollars each, and defendants aver that they did begin to organize
such company in July, iS89, and that said organization was never
completed, and was discontinued before completion, but they aver
that since that time they have organized a corporation under that
name with the same nominal but not actual amount of capital stock.
VI. They deny that in and by the terms of the trust agreement
alleged in said complaint to have been made between these defend-
ants and the owners of said " Sinking Fund" and " Gold Mortgage"
bonds it was the duty of the defendants, having turned the franchise
and property of said Chattaroi Railway Company over to said new
corporation or any new corporation by adequate deed of conveyance;
to then divide the capital stock of the said new corporation or any
new corporation pro rata among said bondholders. They deny that
they entered into an agreement outside of said trust agreement and
hostile thereto, but beneficial to themselves personally with one Collis
P. Huntington whereby they agreed, in consideration of fifty- six thou-
sand dollars or thereabouts to be paid to them by said Huntington, to
obtain for the said Huntington a majority in value of the said bonds
for the cash price of fifty per cent, of the par value thereof to be
paid by the said Huntington and thereupon to turn the said new cor-
poration over to said Huntington, whereupon, according to the terms
of the said alleged agreement which they are alleged to have so made
with the said Huntington without authority, stock of the said new
corporation of the par value of nine hundred and ninety-four thousand
dollars only is to be distributed pro rata among the said bondholders
instead of two million dollars of the stock of the new corporation, and
they deny that said trust agreement provides that said two million
651 Volume 5.
6421. CORPORATIONS. 6421.
dollars of stock shall be so distributed, and they deny that they have
entered into the said agreement or any agreement with said Hunt-
ington whereby they have combined with him and have designed and
concluded to so distribute stock of the said new corporation or to
any new corporation of the par value of nine hundred and ninety-four
thousand dollars instead of the entire stock of the said new corpora-
tion for the purpose of wronging the said bondholders and depreciat-
ing the value of their said bonds and compelling them to part with
the same at fifty per cent, of the par value thereof sooner than to
enter into a litigation with them and the said Huntingdon and his
associates.
VII. They deny that they are now about to carry out said alleged
agreement with said Huntington and the organization thereof and
the distribution of the said stock thereof to the said bondholders
and are about to convey the franchise and the property of the said
Chattaroi Railway Company to be disposed of as aforesaid and not in
accordance with said alleged trust agreement, and they deny that in
pursuance of the alleged so-called agreement the stock of the said
new corporation of the par value of nine hundred and ninety-four thou-
sand dollars only is to be distributed among said bondholders, and
they deny that said plaintiff will thereby or in any way be wronged
and will not receive the benefit of the said trust agreement and will
not obtain the stock which he is entitled to thereunder.
VIII. They deny that they claim and pretend that the said fifty-six
thousand dollars, which it is alleged in the said complaint is to be paid
by said Huntington in cash to them, is to be their individual property,
and they deny that they intend to distribute the same among them-
selves or that they allege that that amount is due to them for money
disbursed by them in the management and running of the Chattaroi
Railway Company after they became the owners of the same as joint
tenants in trust, and they deny that no sum is due to them, and they
deny that they ever owned and operated the said Chattaroi Railway
Company, as trustees or otherwise, from May, i867, to July, i89, or
at any other time, and they deny that they ever received large sums
of money or any sums of money the earnings of said company, and
they deny that they still hold or ever held any of the earnings of said
company. They admit that they never accounted for said earnings,
for they never received them. They deny that they are about to
turn the said franchise and property over as aforesaid without ren-
dering any account or that they intend to retain unaccounted for all
of the said alleged earnings, and they deny that if they render a just
and true account of the money so received by them and are allowed
all legal expenses it will be found that they have in their hands a
large sum in excess of all legal expenses, and they deny that instead
of the said company or the said bondholders being in any way in-
debted to them they have in their hands money for which they are
justly accountable to the said bondholders.
IX. They aver that the only trust agreement with owners of bonds
issued by the said Chattaroi Railway Company into which the defend-
ants have entered is that set forth in a certain agreement dated
February 15, iS89, a copy of which is hereunto annexed, marked
652 Volume 5.
6421.
CORPORA TIONS.
6421.
Schedule A, 1 and made a part of this answer.
X. They deny all allegations of the complaint in respect to the
contents, purport or effect of said trust agreement except as by refer-
ence to said schedule they may. be found correct and true.
1. Schedule A, containing a copy of the
trust agreement referred to in the text,
was as follows:
"This Trust Agreement, made and
entered into this fifteenth day of Febru-
ary, A. D. i8<?7, between the holders of
the ' Sinking Fund' and ' Gold Mort-
gage ' bonds of the Chattaroi Railway
Company (secured by mortgages of said
Company respectively bearing date
August, isth, i8<5b, and March ist, i8c?),
first party, and George C, Wood, of Brook-
lyn, New York; Samuel D. Davis, of
Lake-wood, New Jersey; Jerry Collins, of
Glens Falls, New York; and Anson Malt-
by, of New York, second party, wit-
nesseth:
First. Each holder of any of the said
bonds who shall deposit them with the
Union Trust Company of New York,
under this trust agreement, agrees for
himself and not for the others, but to
and with the other, and with the second
party.
Second. Each bondholder of ' Sinking
Fund' and ' Gold ATortgage ' bonds shall
deposit his bonds with the Union Trtesf
Company of New York, and shall in
place of said bonds receive from said
Trust Company its receipt as set forth
in ' Schedule a' hereto annexed. Such
receipts shall be transferable by indorse-
ment and delivery, and when issued to
a depositor hereunder, shall be deemed a
part of this agreement, and its terms
shall, in connection herewith, control
the parties hereto.
Third. The stock and ' 'Income Bonds'
of the Chattaroi Railway Company be-
longing to depositors [hereunder] of
' Sinking Fund' and 'Gold Mortgage'
bonds shall be deposited with said
Trust Company, for which said Trust
Company shall give a certificate of de-
posit as set forth in 'Schedule^' hereto
annexed, and shall be subject to the
control of the second party, and shall be
delivered to the Charleston, Cincinnati
and Chicago Railroad Company, or to
any company or persons to whom the
second party shall sell said property, as
hereinafter provided, or to any new
company organized by them, as herein-
after provided, and by such transfer,
all rights as owners of such bonds and
stock shall become the rights of such
transferee.
Fourth. In this instrument the word
' receipt ' refers to receipts of ' Sinking
Fund' and ''Gold Mortgage' bonds as
set forth in ' Schedule a,' and the words
" Certificate of Deposit' refer to certifi-
cates of deposit of ''Income Bonds' and
capital stock asset forth in ' Schedule b.'
Fifth. Second party, their survivors
and survivor, shall have power to fill
any vacancy or vacancies, which may
exist in their number.
Sixth. Second party shall be and
constitute a purchasing committee.
At any sale of the property covered by
the mortgage aforesaid, which may be
made pursuant to any decree in the
foreclosure . proceedings now pending
in the Circuit Court or Circuit Courts
of the United States, second party
shall have and is hereby given full
power and authority to purchase all and
singular the property covered by said
mortgages in their own names as joint
tenants, and not as tenants in common,
but for and behalf of the first party
hereto, and at a price within their dis-
cretion. Second party shall have
power and authority to appropriate
and use the bonds deposited with said
Trust Company under this agreement
in payment for the purchase price for
said property, so far as the same can
be used, and said Trust Company is
hereby instructed to hold said bonds
to the order and direction of second
party for such purpose, and the pur-
poses hereinafter mentioned, and to
deliver said bonds to second party upon
their written request, or otherwise dis-
pose of said bonds as second party may
direct, in order to apply the same bonds
in payment of such purchase price. Sec-
ond party may designate any one or
more of its members, or any other per-
son or persons, to attend the said sale
and bid off the property, and may gen-
erally employ such agents or attorneys
or counsel as second party shall find
necessary and proper.
Seventh. Second party shall have
power to borrow such money as may
be necessary to the carrying out of
this agreement, and security for pay-
ment of such money, to pledge the
bonds deposited hereunder, and to
mortgage and give a lien on the prop-
erty purchased by them hereunder;
6G3
Volume 5.
6421.
CORPORA TIONS.
6421.
XI. They aver that during the month of August, i889, before the
service of the summons in this action, they organized the Ohio and
and to contract for the extension of the
time of repayment of such loans from
time to time.
Eighth. In case said party shall pur-
chase said property, as aforesaid, sec-
ond party shall take, hold and operate
the same until they shall sell the same,
or until a new company shall be
formed to hold and operate the same,
if it, at any time, becomes necessary so
to do to carry out the purposes hereof.
Ninth. At any time within six
months from the date when said second
party shall obtain possession of said
road and property, they shall have
power in accordance with the proposi-
tion of the Massachusetts and Southern
Construction Company, dated October
26th, i8$6, and assented to by the first
parties hereto, to sell such property
and road unto the Charleston, Cincinnati
and Chicago Railroad Company, or [on
their failure to purchase] to any cor-
poration, or person, for a cash sum,
which shall equal seventy-two per cent,
of the par value of the outstanding
''Sinking Fund' and ' Gold Mortgage'
bonds of said Chattaroi Railway Com-
pany, with interest at six per cent, on
the par Value of such outstanding
bonds from January ist, i8<?/, and the
legitimate foreclosure expenses, and
the legitimate floating debt.
Tenth. The purchase money for
which said second party shall sell said
property, shall be paid to said Trust
Company.
Eleventh. After the second party
shall have deducted or been reimbursed
the expenses of carrying out this
agreement, the sum remaining shall
be divided among and paid to the
holders of the receipts issued here-
under, in proportion to the number of
bonds deposited for which the receipts
were issued, upon the surrender to
said Trust Company of such receipts.
Twelfth. Should said second party
at any time deem it necessary, in order
more fully to protect the rights of the
persons composing the first party
hereto, to form a company to take pos-
session and operate said property and
railroad under the present franchise or
a new charter, they are hereby fully
empowered to form such company.
The stock of such company shall be
issued to and divided among the hold-
ers of the receipts issued by the said
Trust Company hereunder, in propor-
tion to the number of bonds deposited
for which the receipts were issued,
upon the surrender to said Trust Com-
pany of such receipts.
Thirteenth. Second party shall be
invested with full power and authority
to carry out the purposes of this trust
agreement, to make and execute all
such instruments as they deem neces-
sary hereunder, and generally to do
all acts and things necessary and
proper in their judgment to execute
the provisions of the agreement, and
shall be entitled to a reasonable com-
pensation for their services.
And in all cases second party shall
be authorized to pay such reason-
able compensation as they may deem
proper to all counsel, servants and
agents whom they may reasonably em-
ploy in carrying out the purposes of
this agreement; shall have full power
and authority to make due provisions,
in their discretion, in case of any de-
fect of their express powers hereunder,
and shall nevertheless proceed to carry
out the true intent, meaning and pur-
pose of this agreement by conforming
as near as may be to the provisions
thereof. And they may assist in the
prosecution of, or become parties to,
all suits now pending or hereafter to
be brought, or commence and prosecute
all such other suits or proceedings as
they may deem necessary in the prem-
ises.
Fourteenth. Second party shall act
by a majority of their number, either
at regular or special meetings or by
writing signed by such majority with-
out a meeting as they shall determine
from time to time. They shall deter-
mine all questions that may arise con-
cerning the construction and effect of
any provision of this agreement, which
determination shall be final and con-
clusive in every case.
Fifteenth. The several members of
the second party shall not be person-
ally responsible for the acts or omis-
sions of their associates, nor for those
of their agents, servants and employees
employed by the second party as such
committee.
Sixteenth. By the acceptance of the
receipts hereinbefore referred to, the
parties of the first part, respectively
depositing their bonds with the said
654
Volume 5.
6421. CORPORATIONS. 6421.
Big Sandy Railroad Company under, by virtue of, and in accordance
with the acts of the general assembly of the commonwealth of Ken-
tucky entitled (title of acts and dates of approval}!
XI0. They aver that said act entitled " An Act to incorporate the
purchasers of railroads " provides as follows: (Here was set out pro-
visions of act.y*
XI. Chapter 56 of General Statutes requires that in incorporat-
ing companies under said chapter the amount of capital -stock author-
ized and the times when and the conditions upon which it is to be
paid in shall be provided for.
XI^. They aver that said act entitled " An Act to incorporate the
Chattaroi Railway Company " provides that the capital stock of the
said Chattaroi Railway Company shall be two million of dollars divided
into shares of one hundred dollars each, and that it may at any time
be increased by a vote of the majority of the stockholders to any
sum necessary for the completion and equipment of said railway, not
exceeding ten million dollars, and said act provides further that said
stock shall be paid for in money, work, property, material, or in such
kind and manner as may be agreed upon.
XI</. They aver on information and belief that the original cost
of the construction of the said railroad of the said Chattaroi Railway
Company and of the equipment purchased for use on said railroad was
not exceeding twelve hundred and fifty thousand dollars ($1,250,000),
and said railroad is not half completed.
XII. That in order to comply with the terms of said act entitled
Trust Company, become parties to this approved April 22, 1873, under which
agreement with the same force and latter act chapter 56 of the General
effect as if they had severally affixed Statutes of the Commonwealth of Ken-
their signatures and seals at the foot tucky was enacted.
of this instrument. 2. The act referred to in the text pro-
Seventeenth. Holders of bonds and vided as follows:
stocks not depositing the same hereun- "That whenever a railroad hereafter
der within a period of sixteen days may be sold under and in pursuance of
(which may be extended at discretion a decree or judgment of a Court of
by second party) shall be deemed Equity or other court having jurisdic-
nonassenting bondholders, and shall tion, the purchasers thereof or their as-
not be entitled to any benefit here- signs, together with such persons as
under. may be associated with them, shall be
Eighteenth. The several persons authorized to become a body politic and
composing the second party hereby corporate for the purpose of operating
accept the trusts imposed upon them and completing said railroad and shall
by this agreement. be entitled to exercise all the franchises,
In witness whereof the parties hereto powers, rights and privileges, and shall
set their hands and seals the day and be subject to all limitations, restrictions
year first aforesaid." (Signatures and and liabilities contained in the charter
seals.} granted by the General Assembly of
(Schedules a and b attached.} the Commonwealth of Kentucky, under
1. The titles of the acts referred to in the which said railroad was constructed and
text were " An Act to incorporate the operated as they existed at the time of
Chatteroi Railway Company, "approved such sale. The mode by which said
March n, 1873; "An Act to amend purchasers or their assigns and asso-
the charter of the Chattaroi Railway ciates as above mentioned shall become
Company," approved February 23, 1882; incorporated shall be as prescribed in
" An Act to incorporate the purchases Chapter 56 of the General Statutes,"
of railroads," approved March i, 1876; etc.
"An Act to adopt the general statutes,"
655 Volume 5.
642 1 . CORPORA TIONS, 642 1 .
"An Act to incorporate the Chattaroi Railway Company" the
defendants, in the articles of incorporation of the O Aw and Big Sandy
Railroad Company as finally organized by them, fixed the nominal
amount of the capital stock of the said company at two million dollars,
and further provided in said articles that "Nine hundred and ninety -
four thousand dollars of said capital stock is to be delivered to the
purchasing and reorganization committee above mentioned (mean-
ing these defendants), in part payment for the property purchased
by said committee at the sale above mentioned " (meaning the prop-
erty formerly of the Chattaroi Railway Company held by these defend-
ants under said trust agreement of February 15, i8<?7), and also that
"The balance of the said capital stock may be disposed of from time
to time by the board of directors at its discretion, and is to be paid
in from time to time upon calls by the board of directors."
XIII. They aver that by such provisions these defendants intended
that the actual capital stock should be but [994,000] nine hundred
and ninety-four thousand dollars, and that the whole thereof should be
delivered in payment for the transfer of said property, and should
be distributed in accordance with the terms of said trust agreement.
And that thereafter, when in the proper administration of the affairs
of said railroad company it should be deemed necessary, the remain-
der or any part of the nominal capital of two million dollars should
be issued in a lawful manner for a distinct, valuable and proper con-
sideration, t
XIV. They aver that the foregoing is the true and proper con-
struction of said articles of incorporation, and that such intent and
the acts of these defendants in the premises have been in strict fulfil-
ment of said trust agreement and of said acts of said assembly.
XV. The} r aver that on or about the twenty-fourth day of August,
iS89, they conveyed all the property formerly of the Chattaroi Railway
Company, or acquired by them as trustees, and held under said trust
agreement to said Ohio and Big Sandy Railroad Company, in consider-
ation of said nine hundred and ninety-fotir thousand dollars of capital
stock and of a promissory note of said railroad company for \56,800~\
fifty-six thousand eight hundred dollars payable on demand to the order
of George C. Wood, one of these defendants, as chairman of said
purchasing committee.
XVI. They aver that accordingly said nine hundred and ninety- four
thousand dollars of capital stock, and that amount only, has been issued
for delivery according to the provisions of said trust agreement, and
of that amount two hundred and seventy shares, at the par value of
twenty-seven thousand dollars, are ready for delivery in exchange for
the trust receipts of the Union Trust Company of New York, given
for the twenty-seven bonds of the Chattaroi Railway Company deposited
as alleged in the complaint on compliance by the owner thereof with
said trust agreement.
XVII. They aver that the amount of said promissory note was
fixed by these defendants as an estimate to cover as nearly as possi-
ble sums of money borrowed and liabilities incurred by them in pur-
suance of their duties as such purchasing committee under said trust
agreement, and such promissory note was made and given to these
656 Volume 5.
6421. CORPORATIONS. 6421.
defendants by said railroad company upon condition that after col-
lection thereof any part of the said sum of fifty-six thousand eight
hundred dollars not justly and properly payable by said defendants
as such committee should be returned to said railroad company.
XVIII. They aver that apart from said promissory note and said
shares of capital stock they have no property of themselves as said
purchasing committee, or of said Chattaroi Railway Company or of
any owner of said trust receipts or bonds in their possession or
under their control; that they nor any of them have ever individu-
ally received any money or property, the earnings of said railroad,
during their whole term of office as such committee, whether as com-
mission or compensation for their services as trustees or otherwise,
but that all moneys and property received during their said term of
office, in the operation or on account of said railroad, were received,
held and expended by the officers and agents of these defendants,
except money borrowed by these defendants, and all of it paid out
by them for the purposes of purchasing and operating said railroad
and paying the small expenses of said purchasing committee. That
all property and account books used in operating said railroad by
these defendants and all accounts and property of these defend-
ants as such committee were delivered to said railroad company on
the twenty-fourth day of August, i&89, and are still held by said
company.
XIX. They deny that they have received and still retain or that they
hold control or are to receive from any person or source whatever
any sum of money or property to which the plaintiff is or has ever
been entitled as the alleged or real owner of said twenty-smen bonds
or of the receipts of the said Union Trust Company for the deposit
thereof under said trust agreement, and they deny that any account-
ing whatsoever will show that they have or are to have in their hands
or under their control any sum whatever, whether in excess of all
legal expenses or otherwise, or that they have or are to have in their
hands or under their control money for which they are in any way
accountable to any holder of any of said bonds or trust receipts or
to this plaintiff.
XX. They aver on information and belief that the owners of
trust receipts for nine hundred and sixty-seven bonds of the total nine
hundred and ninety-four bonds deposited under said trust agreement
dated February 15, i8<5?7, have ratified and approved all of the vari-
ous acts aforesaid of these defendants in reorganizing said railroad
company and conveying said property to said Ohio and Big Sandy
Railroad Company, and especially in the issuing and distributing but
nine hundred and ninety-four thousand dollars of capital stock to the
holders of trust receipts under said trust agreement, and that the
owners of the twenty-seven bonds or trust receipts therefor, upon
which this suit is based, are the only owners of any such bonds or
trust receipts who have not so ratified and approved said acts of these
defendants.
Wherefore, the defendants demand judgment against the plaintiff,
that this complaint herein be dismissed with costs of these defend-
ants.
5 E. of F. P. 42. 657 Volume 5.
6422.
CORPORA TIONS.
6422.
(Verification.)*
Anson Maltby, Attorney in Person, and
Attorney for Defendants George C.
Wood, Samuel D. Davis and Jerry
Collins.
IV. DISSOLUTION WINDING UP. 2
1. Proceeding's to Dissolve, Generally. 3
1. Consult the title VERIFICATIONS.
2. Involuntary dissolution of a corpo-
ration may be accomplished as pro-
vided by statute. Consult the following
statutory provisions:
Alabama. Civ. Code (1886), 3167
et seq.
Arizona. Rev. Stat. (1887), 3191
et seq.
Arkansas. Sand. & H. Dig. (1894),
7364 et seq.
California. Code Civ. Proc. (1897),
802 et seq.
Colorado. Mills' Anno. Code (1896),
289 et seq.
Connecticut. Gen. Stat. (1888),
1321 et seq.; Laws (1889), p. 138, Laws
(1893), p. 263, Laws (1895), pp. 467, 571.
Georgia. 2 Code (1895), 1879 et
seq.
Idaho. Rev. Stat. (1887), 4329.
Illinois. Starr & C. Anno. Stat.
(1896), p. ion, 25 et seq.
Indiana. Horner's Stat. (1896),
1141.
Iowa. Code (1897), 4313.
Kansas. I Gen. Stat. (1897), p. 700,
45 et seq.
Kentucky. Stat. (1894), 569.
Louisiana. Rev. Laws (1897), 688.
Maine. Rev. Stat. (1883), p. 403,
27 et seq.
Maryland. Pub. Gen. Laws (1888),
art. 23, 264 et seq.
Massachusetts. Pub. Stat. (1882), p.
1075, 17 et seq.
Michigan. How. Anno. Stat. (1882),
8155, 8165, 8618, 8657; Pub. Acts
(1895), p. 41 et seq.
Minnesota. Stat. (1894), 359,
5899, 5962, 5965, 5968 et seq.
Mississippi. Anno. Code (1892),
3520 et seq.
Missouri. Rev. Stat. (1889), 2835.
Montana. Code Civ. Proc. (1895),
1410 et seq.
Nebraska. Comp. Stat. (1897),
1737, 1846.
Nevada. Gen. Stat. (1885), g 3342
et seq., 3711.
New Hampshire. Pub. Stat. (1891),
p. 410, 22.
New Jersey. Gen. Stat. (1895), p.
919, 70.
New York. Birds. Rev. Stat. (1896),
p. 672, $ 68 et seq., p. 675, 80.
North Carolina. Code (1883), g
604, 694 et seq.
North Dakota. Rev. Codes (1895),
2912, 5762 et seq.
Ohio. Bates' Anno. Stat. (1897),
5651 et seq.
Oklahoma. Stat. (1893), 968 et
se <}-, 5357 et seq., 6140.
Oregon. Hill's Anno. Laws (1892),
354 et seq.
Pennsylvania. Bright. Pur. Dig.
(1894), p. 411, 31 et seq.
Rhode Island. Gen. Laws (1896), p.
536, 27 et seq.
South Carolina. Code Civ. Proc.
(1893), 424 et seq.
South Dakota. Dak. Comp. Laws
(1887), 5345"f.
Tennessee. Code (1896), 2054 et seq.
Texas. Rev. Stat. (1895), art. 680 et
seq.
Utah. Rev. Stat. (1898), 3623.
Vermont. Stat. (1894), 3741.
Virginia. Code (1887), 404 et seq.
Washington. Ballinger's Codes and
Stat. (1897), 5780 et seq.
West Virginia. Code (1891), p. 510,
57 et seq.
Wisconsin. Sanb. & B. Anno. Stat.
(1889), i&24etsff.
Wyoming. Rev. Stat. (1887), 3092
et seq.
See also list of statutes cited supra,
note i, p. 527.
3. Action to procure judgment dissolv-
ing the corporation, and forfeiting its
corporate rights, privileges and fran-
chises, may be maintained: i. Where
the corporation has remained insolvent
for at least one year. 2. Where it has
neglected or refused for at least one
year to pay off and discharge its notes
and other evidences of debt. 3. Where
it has suspended its ordinary and law-
658
Volume 5.
6422. CORPORATIONS. 6423.
a. Before Attorney-General. 1
(1) NOTICE OF MOTION.
Form No. 6422.'
In the matter of the Buffalo Stone and Cement Company.
Byron M. Schultz : Please take notice that on the statement or
petition, a copy of which is herewith served upon you, ajnotion will
be made before the Hon. Charles F. Tabor, attorney-general of the
state of New York, at the office of Messrs. Tabor &* Sheehan, in the
Law Exchange, corner of Niagara and Eagle streets in the city of
Buffalo, county of Erie and state of New York, on the second day of
March, i8<?, at eleven o'clock in the forenoon of said day, that the
proper proceedings be taken by said attorney-general to dissolve said
company.
Dated the twenty- fifth day of February, iS89.
Strong 6- Brendell, Attorneys for Petitioners,
No. 41 E. Seneca Street, Buffalo, N. Y.
(2) SUBMISSION OF STATEMENT OF FACTS.
O) By Written Request.
Form No. 6423.*
To Honorable Thomas B. Hancock, Attorney-General of the State of
New York :
You are hereby requested to bring an action against The Northern
Light Oil Company, of the city of New York, Charles W. Burton, and
others, trustees of said company, to vacate the charter and annul the
existence of said company, and for the appointment of a receiver for
its assets, and for an injunction restraining the corporation and its
officers and agents from exercising any of its corporate rights and
ful business for at least one year. 4. court for leave to commence such ac-
If it has banking powers, or power to tion, and on obtaining leave may main-
make loans and pledges or deposits, or tain the same.
to make insurances, where it becomes Ne-w York. Code Civ. Proc.,i786,
insolvent or unable to pay its debts, or as amended Laws (1880), c. 301 (Birds,
has violated any provision of the act by Rev. Stat. (1896), p. 673, 69). See also
or under which it was incorporated, or list of statutes cited supra, note 2_
of any other act binding upon it. p. 658.
New York. Code Civ. Proc., 1785 2. This notice of motion to dissolve
(Birds. Rev. Stat. (1896), p. 672, 68). was copied from the record in the case
See also list of statutes cited supra, of Peoples. Buffalo Stone, etc., Co., 131
note 2, p. 658. N. Y. 140. For notice of motion, gen-
1. The attorney-general, in the name erally, consult the title MOTIONS.
and in behalf of the people, may main- 3. This request to the attorney-general
tain the action, and whenever a creditor to sue was based upon the facts in
or stockholder submits to the attorney- Swords v. Northern Light Oil Co., 17
general a written statement of facts, Abb. N. Cas. (N. Y. Supreme Ct.) 115.
verified by oath, showing grounds for In that case the attorney-general was
an action, and the attorney-general requested to commence an action in the
omits for sixty days after the submis- name and on behalf of the people of
sion to commence the action, then, and the state to dissolve said corporation,
not otherwise, the creditor or stock- More than sixty days elapsed, and the
holder himself may apply to the proper attorney-general omitted to commence
659 Volume 5.
6424. CORPORA TIONS. 6424.
franchises. The grounds upon which the action is requested are as
follows:
1. That the said corporation is now, and has been for over a. year
last past, insolvent, and has not paid any of its indebtedness owing
to various persons, and has no adequate means of liquidating such
indebtedness.
2. That the assets of said company consist almost entirely of oil-
lands, the product from which has been exhausted so that the said
company is not now, and has not been for some time, in the receipt
of any income whatsoever.
3. That the undersigned are stockholders in said company, and
make this request on behalf of themselves and of all others who are
interested in said company, either as stockholders or creditors, and
they offer to furnish security satisfactory to you to indemnify the
people of the state of New York against costs in any action, or
actions, brought upon this application.
William B. Jay,
15 Broadway, New York, N. Y.
New York, April 5, i807.
(Affidavits, setting forth in detail the facts should accompany this
request. ) x
() By Petition.
Form No. 6424.*
To the Honorable Charles F. Tabor, Attorney-General of the State
of New York, Albany, N. Y.:
Sir: The undersigned would respectfully represent that they are
stockholders in the Buffalo Stone and Cement Company, a corporation
duly incorporated and organized under the laws of the state of New
York, on the eighteenth day of August, i&85.
That its capital stock was nine hundred shares, of the par value of
one hundred dollars.
That it was organized for the purpose of carrying on the business
of manufacturing of building and cut stone, of cement and gypsum,
and the purchasing and improving real estate for residences and
homesteads, to be leased or sold by said company.
That the term of its existence was to be fifty years.
That only an average of about seventy-five per cent, of its capital
stock has been paid in, and that a number of its largest stock-
owners, seeing the great mismanagement that is taking place, to call
it by no harsher term, refused to pay any more assessments.
That the company, by reason of the gross mismanagement, has
utterly failed to carry out the purposes for which it was organized, and
the action. N. Y. Code Civ. Proc., 2. This petition is copied from the rec-
1785^ scq. (Birds. Rev. Stat. (1896), p. ord in the case of People v. Buffalo
672, 68 et seq.\ See also list of Stone, etc., Co., 131 N. Y. 140.
statutes cited supra, note 2, p. 658. For formal parts of petitions of this
1. For such a statement of facts see character, generally, consult the title
facts set out in the petition given infra, PETITIONS.
Form No. 6424.
660 Volume 5.
6424. CORPORA TIONS. 6424.
has never done anything in the line of the purposes for which it was
organized, to any considerable extent.
That all that is due upon said stock is $23,500.00, less the value of
one hundred and ten shares, which- have been forfeited.
That the par value of those forfeited shares is $11,000.00, which,
deducted from the $23,500.00, leaves for available funds for carry-
ing on the business on the full payment of all the stock sold, of only
$11,500.00.
That there are two mortgages on the property of the company, one
of $32,140.00, and one of $20,000.00, amounting in all to $52,140.00,
drawing interest at the rate of six per cent, per annum, amounting
to the sum of $3,128.40 yearly.
That in the way the property is now and always has been man-
aged, there is no money with which to pay this interest, except
assessments upon the- unpaid capital stock, as the company has
never done business amounting to its expenses.
That said company has failed entirely to do or perform any busi-
ness whatever for more than one year last past, and during all of said
period of time said company has suspended its ordinary and lawful
business.
That the board of directors have violated the law in such cases
made and provided, by accepting notes instead of money, for the
amount of the assessments on the stock held by certain of the stock-
holders, especially from Mrs. Mary Shultz, wife of Byron M. Shultz
who is the nominal owner of four hundred shares of said stock.
That said board has taken her note for the sum of $2,000.00.
That it has been ascertained by the undersigned, and is alleged as
a fact, that the mortgage of $32,140.00 owned by said Mary Shultz
has been hypothecated to a bank in this city for the sum of $6,000.00,
and that said bank refuses to permit the sum of $2,000.00 to be
credited upon said mortgage, for said note, thus leaving the whole
amount of said mortgage a lien upon the property of the company,
without the company's having the right or power to offset her said
note.
That said Byron M. Shultz or said Mary Shultz have neither of
them ever paid any money for the shares of stock held by them, or
either of them.
That until said mortgage was hypothecated all the assessments
against the stock held by said Shultz or his wife have been credited
upon said mortgage.
That part of the property now owned by the company was pur-
chased of the said Mary Shultz, and the shares of stock now held by
her were taken and credited upon the purchase price, but no money
was ever paid for said stock.
That the undersigned have just ascertained that the acts of the
said board of directors have been illegal and not in accordance with
the laws of this state regulating such boards, and desire that said
company be dissolved. {Signatures of president, vice-president, trustees
and stockholders. )
(Verification^-
1. Consult the title VERIFICATIONS.
661 Volume 5.
6425. CORPORATIONS. 6426.
b. Obtaining Leave to Sue. 1
(1) PETITION.
(a) By Attorney-General.
Form No. 6425.*
To the {Superior Court of Buffalo} : 3
The petition of Charles F. Tabor respectfully shows that he is the
attorney-general of the state of New York:
That application has been made to him by Rufus M. Choate and
others, stockholders and trustees of the Buffalo Stone and Cement Com-
pany, for the purpose of having an action brought by the attorney-
general, in the name of the people of the state of New York, against
the above named corporation for a dissolution of its charter; and a
hearing having been had on the part of said petitioners and the other
stockholders and officers, opposed, and the attorney-general having
determined that he believed that an action could be successfully
maintained against said corporation, and the said petitioners having
furnished the security required by law; application is hereby made for
leave to bring an action upon the grounds and for the reasons stated
in the annexed complaint, against the said corporation, reference
being thereto had.
Your petitioner further shows that he has read the annexed com-
plaint and believes that an action can be successfully maintained in
behalf of the people for the reasons stated therein.
Chas. F. Tabor, Attorney-General.
( Verification^
0) By Stockholder.
Form No. 6426.*
In the matter of the application of Thomas Swords\
for leave to commence an action to procure a I
judgment dissolving the Northern Light Oil Com- j
pany, a corporation.
To the Supreme Court, New York County:
Petitioner Thomas Swords, appearing by William B. Jay, his
attorney, by this his petition respectfully shows:
1. New York. Code Civ. Proc., For formal parts of petitions of this
1786, as amended Laws (1880), c. 301 character consult the title PETITIONS.
(Birds. Rev. Stat. (1896), p. 672, 69). 3. The superior court of Buffalo has
See also list of statutes cited supra, been abolished and the jurisdiction for-
note 2, p. 658. merly vested in it transferred to the
2. This petition for leave to bring action supreme court. N. Y. Const. (1895),
against a corporation for a dissolution art. 6, 5.
of its charter is copied from the record 4. See the title VERIFICATIONS.
in the case of People v. Buffalo Stone, 5. This petition of a stockholder for
etc., Co., 131 N. Y. 140. The court of leave to commence an action for disso-
appeals affirmed the judgment in favor lution of the corporation is based upon
of the plaintiff rendered at the general the facts in Swords v. Northern Light
term of the superior court of Buffalo, Oil Co., 17 Abb. N. Cas. (N. Y. Supreme
affirming the decision of the special Ct.) 115. In that case the attorney-
term of said court. general was requested to bring suit.
662 Volume 5.
6427. CORPORATIONS. 6427.
I. That the Northern Light Oil Company is a domestic corporation
duly organized, formed and existing under and by virtue of the laws
of the state of New York, having its principal business office in the
city of New York, state aforesaid.
II. That petitioner is now, and ever since the tenth day of May,
iB91, has been, a stockholder in the said Northern Light Oil Company.
III. That on the eighth day of April, iS97, in pursuance to section
1786 of the Code of Civil Procedure of the state of New York, as
amended by the Laws of 1880, chapter 301, your petitioner duly applied
to the attorney-general of New York, by submitting to him a written
statement of the facts, verified by oath, reciting in substance all the
matters and things proper to be alleged, showing grounds for an
action against said corporation, under the provisions of section 1785 of
the Code of Civil Procedure of the state of New York, a copy of which
said application is hereto annexed and made a part of this petition,
requesting the said attorney-general to commence an action in the
name and behalf of the people of the state of New York to dissolve
said corporation. That more than sixty days have elapsed since such
application was made, and the attorney-general has omitted for sixty
days after the written statement of facts, verified by oath, was sub-
mitted to him as aforesaid to commence an action or proceeding to
dissolve said corporation, or any action specified in said section 1785
of Code of Civil Procedure of the state of New York, and that there-
fore plaintiff, as a stockholder as aforesaid, now has the right to
bring an action in his own name, such as is by said sections 1785 and
1786 of the Code of Civil Procedure of the state of New York
provided.
Wherefore, your petitioner asks for leave to commence an action
in his own name to procure a judgment dissolving said corporation
upon the grounds and for the purposes indicated in the said appli-
cation to the attorney-general, so made as aforesaid and hereto
annexed.
Thomas Swords.
( Verification. ) x
(2) ORDER GRANTING LEAVE.
(a) To Attorney- General.
Form No. 6427.*
[At a Special Term of the Superior Court of Buffalo, held at the
City and County Hall, in the city of Buffalo, New York, on the
twenty-third day of April, i889.
Having omitted to do so after sixty 2. This order granting leave to the at-
days, a stockholder asked leave to torney-general to bring suit to dissolve
prosecute the proceeding in his own a corporation is copied from the record
name. in the case of People v. Buffalo Stone,
For formal parts of petitions of this etc., Co., 131 N. Y. 140.
character consult the title PETITIONS. For formal parts of orders, generally,
1. Consult the title VERIFICATIONS. consult the title ORDERS.
663 Volume 5.
6428. CORPORATIONS. 6428.
Present: Hon. Edward W. Hatch, Judge Presiding.] 1
In the matter of the petition of the'
Attorney-General of the State of
New York for leave to bring an
action against the Buffalo Stone
and Cement Company to dissolve
its charter.
On reading and filing the petition of Charles F. Tabor, attorney-
general of the state of New York, verified on the tenth day of April,
iS89, and the order to show cause granted thereon, and the affidavits
of B. Shultz, C. E. Almendinger and William Casterton, and after hear-
ing Henry W. Brendel, of counsel for the people, and Gen. A. W.
Bishop and Warren F. Miller, Esq., of counsel for the Buffalo Stone
and Cement Company, it is
Ordered, that the said Charles F. Tabor, as attorney-general of the
state of New York, be and he hereby is granted leave to bring an
action in this court in the name of the people of the state of New
York against the said corporation to dissolve its charter, upon the
complaint annexed to the said petition and made a part thereof.
Enter: E. W. H., J. S. C.
(b) To Stockholder.
Form No. 6 4 2 8 . 8
{Title of court as in Form No. 6427.)
{Title of cause as in Form No. 6427.)
On reading and filing the annexed petition of Thomas Swords, a
stockholder of the Northern Light Oil Company, a domestic corporation
duly organized, formed and existing under and by virtue of the laws
of the state of New York, and having its principal business office in the
city of New York, state aforesaid, which said petition was verified on
the fifth day of September, i897, and it appearing that on the eighth day
of April, 1 897, said petitioner submitted to the attorney-general of the
state of New York a written statement of facts, duly verified by oath,
showing grounds for an action under section 1785 of the Code of Civil
Procedure of the state of New York, to procure a judgment dissolving
said Northern Light Oil Company ; and it further appearing that the
said attorney-general has omitted for sixty days after the said submis-
sion to commence an action, as specified in this section, for the dis-
solution of said corporation, and that the grounds stated in said
submission stated a case proper for the dissolution of said corporation,
and that under section 1786 of the Code of Civil Procedure of the
state of New York said petitioner is now entitled to commence an
1. The superior court of Buffalo has been proceeding, having been properly and
abolished, and the jurisdiction formerly duly requested so to do, is based on the
vested in it transferred to the supreme facts in Swords v. Northern Light Oil
court. N. Y. Const. (1895), art. 6, 5. Co., 17 Abb. N. Cas. (N. Y. Supreme
2. This order granting leave to a stock- Ct ) 115.
holder to commence an action for dis- For formal parts of orders, generally,
solution after omission on the part of consult the title ORDERS.
the attorney-general to institute the
664 Volume 5.
6429. CORPORATIONS. 6429.
action under section 1785 of the Code of Civil Procedure of the state
of New York to procure a judgment dissolving said corporation.
Now therefore, on motion of William B. Jay, Esq., attorney for said
petitioner, and Oliver Ellsworth, Esq., of counsel for the said Northern
Light Oil Company, it is
Ordered, that Thomas Swords, the said petitioner, be and he is hereby
granted leave to commence an action under section 1785 of the Code
of Civil Procedure of the state of New York in this court, for and on
behalf of himself and all other stockholders who may come in and con-
tribute to the expenses of the suit against the said Northern Light Oil
Company, for the purpose of dissolving said corporation, upon the
complaint annexed- to said petition, and made a part thereof.
Enter: /. M., J. S. C.
c. Bill for Dissolution.
BILL TO WIND UP AND DISTRIBUTE ASSETS, BY MEMBERS.
Form No. 6429.*
(Address and commencement as in Form No. 6419. )
I. That the Northwestern Mutual Benefit Association is a corpora-
tion organized in April, iS79, under an act entitled "An act to
provide for the incorporation of co-operative and mutual benefit asso-
ciations," approved April 3, 1869; that complainants are members of
said association, and each of them holds a certificate of membership
in the second division, otherwise known as the " endou'ment division " ;
that all of their certificates were issued prior to the eighth day of
June, i883; that from assessments paid by them, and the other
members of said endowment division, the association had collected,
and on the eighth day of June, iS83, had on hand, to wit, sixty thou-
sand dollars and upwards, in money and securities, which sum con-
stituted the "endowment fund" of the association, out of which
complainants and other members of the second division were entitled
to receive their respective endowments at the maturity thereof.
II. That Act No. 192 of the Public Acts of 1883 took effect June 8,
1883, and soon thereafter the said association applied to the Commis-
sioner of Insurance for license thereunder, which he refused to grant,
upon the ground that the endowment certificates issued by said asso-
ciation were not authorized by the act under which it was incor-
porated, and the amendments thereto.
1. This bill is based on the facts in in view of its general jurisdiction over
Stamm v. Northwestern Mut. Ben. trusts and to afford remedies in cases
Assoc. ,65 Mich. 317. In that case it where courts of law are inadequate to
was sought to wind up the affairs of grant relief, it has jurisdiction to grant
the corporation and distribute its assets, relief against a corporation upon the
The supreme court, on appeal, affirmed same terms as it might against an in-
thedecreeof thelowercourt,grantingthe dividual under similar circumstances,
relief prayed for, upon the theory that For formal parts of bills in equity,
while courts of equity have no jurisdic- generally, consult the title BILLS IN
tion unless conferred by statute, the EQUITY, vol. 3, p. 417; of complaints
decree of dissolution of the corporation and petitions, generally, consult the title
by forfeiture of its franchise, either at COMPLAINTS, vol. 4, p. 1019.
the suit of an individual or a state court
665 Volume 5.
6429. CORPORATIONS. 6429.
III. That, after the refusal of the Commissioner of Insurance to
issue a license, the officers, trustees or managers of the association
organized a new one by the same name, but leaving out the endow-
ment features, and obtained for said new association from the com-
missioner a license to do business under the act of 1883; that upon
the organization of the new association, to wit, on the fifteenth day of
February, i8&, James M. Barbour, the secretary of said association,
by authority of the board of trustees thereof, issued and sent to com-
plainants and the other members of the endowment division a printed
circular, setting forth the failure to obtain license, and the cause
thereof, and that the new association had been duly licensed; that
there had been for some time a number of dissatisfied members in
the old association, who had appointed a committee, who had met
with the trustees of the association to arrange, if possible, the differ-
ences between them; that an arrangement was made by which the
trustees agreed to pay for reinsurance in the new association what-
ever might be found to have been paid by each member beyond the
actual cost of his insurance, or, in case he preferred to withdraw from
both associations, to pay him in cash one-half that amount; that the
complainants were not satisfied with the propositions, and they each
refused to accept either of the offers therein made.
IV. That it is the intention of the trustees and officers of the asso-
ciation to turn over and appropriate to themselves, or to the new
association organized by them, the said endowment fund of sixty
thousand dollars; that the complainants are informed and believe, and
charge the fact to be, that it is the intention of said trustees and
officers to retain, as the supposed actual cost of insurance, a large
portion of said fund of sixty thousand dollars, and to convert the
same to their own use, or to the use of the new association so
organized by them; that said association has no legal right or
color of right, to transact business since it was refused a license,
but that the trustees and officers thereof have not wound up its
affairs, or instituted any proceedings for that purpose, nor have
they rendered any account to the members of the disposition
made by them of the funds of the association, or of their official
management of its affairs; and they assert that said endowment fund
is the property of the members of said endowment division, the
same having been voluntarily paid in by them in the belief
that it was competent for said association to issue said endowment
certificates.
V. That this bill is filed for and in behalf of complainants, and all
other members of said endowment division.
Wherefore your orators pray:
1. That the affairs of the association may be wound up.
2. That said endowment fund may be apportioned and distributed
among the members of said endowment division according to their
respective rights and interests therein.
3. That said association, and the officers and agents in charge
thereof, may be decreed and required to pay to complainants, and to
each of them, the amount due them, respectively, from the funds of
the association.
666 Volume 5.
64-30.
CORPORA TIONS
6430.
4. That a receiver may be appointed to take possession of the
endowment fund, and all other assets of the association
5. For general relief.
(Signatures of complainants.']
F. A. Baker, Solicitor and of Counsel for Complainants.
(Verification.^-
d. Complaint, Petition, Suggestion or Information.'
(1) FOR ABUSE, MISUSE OR NONUSE OF FRANCHISE. 3
(a) In General.
SUGGESTION FOR QUO WARRANTO TO FORFEIT FERRY FRANCHISE.
Form No. 6430.
(Precedent in Com. v. Sturtevant, 182 Pa. St.
1. Consult the title VERIFICATIONS.
2. For the formal parts of complaints
or petitions, generally, consult the title
COMPLAINTS, vol. 4, p. 1019; for infor-
mations, or suggestions for informa-
tions, in the nature of quo warranto,
consult the title Quo WARRANTO.
3. Consult list of statutes cited supra,
note 2, p. 658.
4. Another Precedent. In State v.
Council Bluffs, etc., Ferry Co.. n Neb.
354, the information filed on behalf of
the state to forfeit a ferry franchise for
nonuser alleged " that on the i6th day
of January, 1855, an act was passed by
the territorial legislature ' to incor-
porate the Council Bluffs and Nebraska
Ferry Company,' which act was ap-
proved February 21, 1855. That by
the third section of said act the cor-
porate business of said corporation
should be managed by a board of di-
rectors of not less than five nor more
than seven, who should be stockholders,
and from their number they should
choose a president and treasurer, who
should hold their office for one year and
until their successors should be chosen.
That by the fourth section of said act
exclusive power was conferred upon
said corporation to keep a ferry and
build a toll-bridge across the Missouri
river at a point known as the Lone Tree
Ferry, opposite the city of Omaha, the
then place of crossing, or at any other
practicable point on said river midway
between the grade at or near the said
Lone Tree Ferry landing in Iowa, and
the ferry landing at Florence, and mid-
way between said grade and the ferry
landing at Bellevue. That by the fifth
section of said act it was made the duty
of said company to procure and keep a
suitable boat or boats, or erect and keep
in repair a substantial bridge, for the
safe and speedy transportation of per-
sons and property over said river at all
reasonable and suitable times. That
said act was duly published among the
laws of the first session of said legis-
lative assembly on page 448, to which
reference is made. That in pursuance
of said act the said company, soon
after the passage thereof, organized by
the election of officers, and for a time
performed the duty required of it by
said fifth section by procuring and
keeping a suitable boat for the trans-
portation of persons and property over
said river. That since the first day of
March, 1877, the said company has ut-
terly and wilfully failed and neglected
to perform its duty in that behalf, and
has not during all that time kept a
suitable or any boat, nor erected nor
kept in repair a substantial nor any
bridge for the transportation of persons
and property over said river at all
reasonable and suitable times, or for
any other purpose, whereby the rights,
privileges and franchises of said com-
pany have become and are subject to
be forfeited. That during all said time,
until within a few months past, the said
officers, provided by section three of
said act, were not elected by the stock-
holders of said company, and no presi-
dent and treasurer, or either of them,
was chosen by the board of directors as
required by said section three, but rela-
607
Volume 5.
6430. CORP OR A TIONS. 6430.
[ The Commonwealth of Pennsylvania ex ~\
relation* William U. Hensel, Attorney- ^ ^ ^^ of ^^
I Pleas of Perr y Count ?>
>
Peleg Sturtevant and Henry F. Zaring,
November Term, iS94, No.
. J
Owners and Operators of "The Liver-
pool Ferry "
Be it remembered, on this eleventh day of September, A. D. iS94,
comes William U. Hensel, the attorney-general of the commonwealth of
Pennsylvania, and files this his suggestion, and gives the court to
understand and be informed,*
1. That by an act of assembly approved the 2ist day of March,
1865. (P. L. 1867, page 1356), there was established a public ferry on
the Susquehanna river at the borough of Liverpool, Perry county, Pa.,
from Shank's Bridge in said borough to a point at or near Liverpool
station on the Northern Central Railway in Dauphin county, Pa., to
be known as "The Liverpool Ferry," and one William Inch, Sr., his
heirs and assigns were by the said act given the franchise to carry
foot persons by the said ferry for tolls not to exceed twenty cents.
2. That by the said act the said William Inch, Sr., his heirs and
assigns were directed to keep the said ferry in good order and repair
and furnish all needful facilities for ferrying foot persons across the
said ferry, and upon condition that he or they should so do and con-
tinue so to do, he or they were given the exclusive right and franchise
to conduct the said ferry, and it was further enacted that so long as
the said duty was so performed no other ferry should be established
for one half mile above or below the said "The Liverpool Ferry."
3. That the franchise aforesaid has passed by devolution, pur-
chase, assignment, etc., from the said William Inch, Sr., to divers
persons from time to time, and it is now vested in Peleg Sturtevant
and Henry F. Zaring, who claim to be the sole owners of the said
franchise at present and for some time past, and are now and have
been conducting the said ferry.
4. That the present owners of the said ferry and their predecessors
from time to time have failed to furnish all needful facilities for
ferrying foot persons across the said river and to keep the said ferry
in good order and repair, but on the contrary have conducted and
maintained the said ferry in an inadequate, improper, negligent and
unlawful manner, and not as required by the conditions of the said
grant, which acts of omission, misuser, nonuser and illegal main-
tenance of the said ferry are specifically as follows: (Statement of
acts.) 2
tor is informed that the said William not appear in the reported case, but
W. Marsh now claims to have been duly have been added to complete the form,
chosen as president, and the said Frank 2. Acts of omission, misuser and non-
Murphy as treasurer of said corpora- user referred to in the text were enu-
tion, and they have for the space of five merated as follows:
days and more last past assumed to act "(a) That they and their predecessors
as such officers, notwithstanding the have for a long time past furnished for
forfeiture of the rights and franchises the said ferry inadequate, unfit and
of the said corporation as aforesaid." dangerous boats; (<) that they and their
1. The words and figures in [ ] do predecessors have for a long time past
668 Volume 5.
643 1 . CORPORA TIONS. 643 1 .
All of which acts, matters and things in the premises have been
and continue to be to the great loss, delay and damage of the public,
whereby the condition upon which the exclusive grant to the defend-
ants and their predecessors has been violated and failed, and the
said exclusive grant and franchise has long since jn fact and in law
become forfeit.
Wherefore the said commonwealth prays the consideration of the
court here in the premises, and that due process of law be awarded
against the said Peleg Sturtevant and Henry F. Zaring, owners and
operators of " The Liverpool Ferry" and that it be adjudged that the
said Peleg Sturtevant and Henry F. Zaring, owners and operators of
"The Liverpool Ferry" and their predecessors have forfeited all and
singular the exclusive right, property and franchise to own and con-
duct the said ''The Liverpool Ferry ," as the sole and exclusive ferry
between the points in the said act of grant named, and have in fact
and in law no longer such sole and exclusive power and franchise, so
that the commonwealth of Pennsylvania may, if it so is moved, grant
to others than the defendants rights and franchises to establish and
conduct ferries upon the said Susquehanna river between the points
named according to law.
And further that a quo warranto be issued against the said Peleg
Sturtevant and Henry F. Zaring, sole owners and operators of "The
Liverpool Ferry" to show by what warrant or authority they claim to
exercise the said sole and exclusive right to maintain the said ''The
Liverpool Ferry " as the exclusive ferry between the points named in
the said act of March 21, 1865, so that the commonwealth Q{ Pennsyl-
vania may not at her pleasure and mere motion grant unto others
than they, the said defendants, the franchise and right to establish
and maintain other ferries between the said points, etc.
\lVilliam U. Hensel, Attorney-General.
(Verification^}*
() Illegal Business Lottery.
Form No. 6431 . 3
employed and placed in charge of said they have failed to keep said ferry in
ferry-boats inexperienced, improper good order and repair and furnish all
and negligent ferrymen; (c) that they needful facilities for ferrying foot per-
and their predecessors have for a long sons across said ferry."
time past refused and neglected to ferry 1. Consult the title VERIFICATIONS.
foot persons on divers occasions, so that 2. The words in [ ] do not appear in
numbers of persons have been com- the reported case, but have been added
pelled to seek other ferries above or to complete the form,
below the said 'The Liverpool Ferry' \ 3. This complaint is based on the facts
(J) that they and their predecessors in State v. International Investment
have for a long time past charged ex- Co., 88 Wis. 512. In that case the de-
tortionate, excessive and illegal tolls fendar.t answered the petition, alleging,
and refused to carry foot persons for the among other things, that the defendant
tolls and ferriage provided by the said had about five hundred members, and
act; (e) that they and their predecessors a large number of agents soliciting
have for a long time past done other and persons to become members, and that
different acts and omissions of misuser it had not yet paid a contract of mem-
and nonuser through and by which bership for the reason that it had not
669 Volume 5.
6431.
CORPORA TIONS.
6431.
In the Supreme Court of the State of Wisconsin.
The State of Wisconsin ex relatione ~\
Philip Lederer, plaintiff,
against >
The International Investment
Company, defendant.
The above named plaintiff, Philip Lederer, by Oliver Ellsworth, his
attorney, brings this action in the name of the state of Wisconsin
against the above named defendant, the International Investment
Company, and complains and alleges : That the defendant, the Inter-
national Investment Company, is a corporation, which was duly incor-
porated on the seventh day of July, i&93, under and by virtue of the
laws of the state of Wisconsin, that the original articles of organiza-
tion of the said International Investment Company were amended on
the eighth day of December, iS93, so as to contain among other things
(Here was set out the effect of the amendment).^-
That the contract of membership is prescribed in the rules, which
are made a part of the articles, and among other things contains in
effect the following {substance of contract)?
continued business long enough. Re-
lator demurred to this answer, which
demurrer was sustained and judgment
directed vacating, dissolving and an-
nulling the corporate existence of the
defendant and ousting it of its fran-
chises, on the theory that a corporation
whose primary object is without statu-
tory authority cannot legally exist,
even though among its declared pur-
poses are some for the promotion of
which the law permits corporations to
be formed.
1. The amendment of the articles of or-
ganization referred to in the text pre-
scribed substantially in effect "the
duties and salaries of each and every
of the several officers, directors and
agents of the company," and provided
"that the business of said corporation
shall be to encourage frugality and
economy in its members, to create,
husband and distribute funds from the
monthly instalments, dues or invest-
ments from its members, to purchase,
take, hold, sell, convey, lease, rent and
mortgage real estate and personal prop-
erty, to loan surplus accumulations,
and to carry on and conduct a general
investment business; that said corpo-
ration shall have no capital stock, but
shall be composedbf incorporators and
members, who shall be admitted in the
manner therein particularly defined;
that said corporation shall issue incor-
porators' shares, originally, only to the
persons who signed the original articles
of incorporation, and to such other per-
sons as the said incorporators or their
assigns shall nominate: provided " (stat-
ing other provisions relating to member-
ship, issuance of shares, forfeitures,
expulsions, etc.},
2. Contract of membership referred to
in text provided:
"That for and in consideration of a
membership fee of $5, and the promise
and agreements of the second party
herein expressed, the first party doth
hereby grant unto the second party, his
heirs, representatives and assigns, so
long as he and they shall keep the said
promises and agreements, but not
longer, all the rights and benefits pro-
vided by the articles of organization
and rules of the company; and the sec-
ond party therein promises and agrees
to pay unto the company each month,
from the date thereof until the contract
is retired or forfeited, the sum of $2,
and also agrees to comply with all the
requirements of the rules of the com-
pany; that if he keeps his agreements
therein contained, but not otherwise,
then, in consideration of the premises,
the company will pay to him, his heirs,
executors, administrators, or assigns,
out of the reserve fund (referred to in
the rules) accumulated for that pur-
pose, on or before forty-three years
from and after the date heroef, the sum
of $/,ooo, provided that this contract is
then in force, and has not been reached
and paid under the further provisions
hereof; or the company doth further
agree that, if the holder hereof shall
670
Volume 5.
6431. CORPORATIONS. 0431.
That the rules further provide that every person desiring to become
a member shall make written application for the number of contracts
he desires, not less than four, and shall accompany his application
with a membership fee of five dollars for each contract applied for,
but the company shall have the right to reject any application upon
the return of the membership fee; that upon receipt'of such applica-
tion this company shall immediately return to such applicant a state-
ment showing the numbers of the contracts that will issue upon the
application, and, if the applicant shall in writing agree to accept the
contracts bearing the numbers so designated, the contract of mem-
bership shall be deemed complete; but if he shall refuse to accept
such contracts he shall immediately notify the company in writing,
at its home office of his refusal, and his membership fee shall be
returned to him and his application canceled; that contracts issued
shall bear the numbers agreed upon, and the holder shall pay unto this
company, at his home office, unless otherwise ordered by the board,
a monthly instalment of two dollars per month upon each contract,
for each successive month from date of contract until cancellation;
that the contracts issued shall be numbered in the numerical order
issued, and to correspond with the numbers agreed to be given in
pursuance of article seven, and shall be issued only in blocks of four;
that, if any member shall fail or neglect to pay any instalment within
fifteen days after it matures, he shall pay a fine of fifty cents for each
such instalment; and if such instalments and fines shall not be paid
within fifteen days from the time when such fine was assessed,
together with the instalment then maturing, the contract upon which
the instalment matured and the fine was assessed shall thereupon
lapse and become null and void, and all payments and instalments
theretofore made thereon shall be forfeited; nor shall this company
give, or be required to give, any notice of the maturity of instalments
or the assessment of fines, or of forfeiture or lapse of contract.
That the rules then provide (statement of provisions).' 1
well and truly keep his said agreement, the text were to the effect " that there
this company will pay to him, his heirs, shall be created and maintained what
executors, administrators, or assigns, shall be known as a ' members' trust
out of the members' trust fund (re- fund,' to which shall be applied $/
ferred to in the rules) accumulated for from each monthly instalment re-
that purpose, when there shall be suffi- ceived, and all fines and transfer fees
cient money in that fund therefor, and collected, and from which shall be
when this contract is reached in its or- made the payment upon contracts men-
der of payment, and not before, the tioned in article 12. Article 12 pro-
sum of $/,0oo, subject, however, to dis- vides that, as often as there shall be in
count pursuant to the provisions of arti- the members' trust fund the sum of
cle 14 of the rules: provided, however, $7,000, there shall be paid to the holder
that this contract has not then been of one outstanding contract of mem-
paid pursuant to the first foregoing bership the sum of $/,ooo, subject to
provision thereof; that if the second certain conditions mentioned therein;
party shall fail to pay any instalment that the first contract upon which pay-
within the time specified by the rules, ment shall be made shall be contract
or if he shall fail to obey and observe No. /, the second payment shall be
the said rules, this company shall have upon contract No. 4, the third payment
the right to cancel and revoke this con- upon contract No. 2, the fourth pay-
tract and terminate this membership, ment upon contract No. <?, and so on,
without notice, proceeding or process. " reverting back to the first issued, un-
1. Provisions of the rules referred to in forfeited, unpaid nonmultiple contract
671 Volume 5.
6431. CORPORATIONS, 6431.
That the business of the defendant, the said the International
Investment Company, is illegal, for the reasons that said alleged corpo-
ration has in it the element of chance and uncertainty, and is in vio-
lation of the statutes of the state of Wisconsin against the maintenance
and operation of lotteries, and that its manner of doing business is
and has been intended to deceive persons, and especially such persons
as have become and may hereafter become members of said corpora-
tion, and that its business is illegal and contrary to law, and a common
and public fraud in this, to wit: (Here was set out the facts shmving the
method and manner of the business and operation of the corporation. )
That your relator, the said Philip Lederer, is now and was at the
time hereinabove mentioned a resident of the city and county of Mil-
waukee, in the state of Wisconsin, and an elector and tax-payer of and
in said state, and a member of said corporation, the said International
Investment Company.
That in pursuance of section 3242 of the Revised Statutes of the
state of Wisconsin (Sanb. & B. Anno. Stat (1889), 3242) your
relator, the said Philip Lederer, duly applied to the attorney-general
of the state of Wisconsin, requesting him to bring an action for the
purpose of vacating the charter and annulling the existence of said
corporation, the said International Investment Company, for the reason
hereinbefore specifically set out and enumerated; and that said attor-
ney-general, upon said application, refused and has since hitherto ever
since refused to bring such action, and that upon such refusal of the
attorney-general to proceed as aforesaid your said relator duly applied
to the Supreme Court after having given due notice of such application
to the attorney-general and to the defendant, the said International
Investment Company, for leave to bring this action; and that there-
upon said court duly granted to the plaintiff leave to sue and bring
this action, with like force and name as if the same had been brought
by the attorney-general in the name and in behalf of the people of the
state of Wisconsin, and that an order to that effect was duly made and
entered on the day o" , 18 , as follows: (Here set out
the order granting leave to sue), 1 a copy of which said order is hereto
annexed and made a part of this petition.
and alternating with the lowest unpaid, twenty per centum of the amount due
unforfeited multiple of four, until like upon every such contract; and article
payments have been made to the hold- 15, after providing for a 'reserve
ers of all issued, unforfeited, unpaid fund,' provides further that whenever
contracts; but the company shall be any contract shall mature, under the
required to pay or make payment upon provisions for payment, forty-three
no contract until there is sufficient years from and after the date thereof,
money in the members' trust fund provided it has not been paid before
therefor, nor until such contract is that time, there shall be paid to the
regularly reached in its order for pay- holder thereof the sum of $/,ooo from
ment; provided, however, that such said reserve fund. It is also provided
contract has not been paid at expira- that all instalments shall be paid at the
tion of time, or upon surrender, pur- home office, unless otherwise ordered
suant to the provisions of article 15. by the board, and proper receipts given;
Article 14 provides that in case there that all receipts shall be numbered, and
shall have been less than sixty monthly duplicate stubs with duplicate numbers
instalments paid upon any contract of to correspond with the receipt num-
membership up to the time that such bers shall be kept in the office."
contract is canceled by payment, then 1. For form of such an order see supra,
there shall be deducted and reserved Form No. 6428.
672 Volume 5.
6432. CORPORATIONS. 6432.
Wherefore relator demands judgment against the defendant, the said
International Investment Company, vacating, dissolving and annulling
the corporate existence of said corporation, and ousting the said cor-
poration of its said franchises heretofore exercised by it.
Oliver Ellsworth, Attorney for the Plaintiff.
(Verification.^-
(c) Illegal Combination Monopoly,
aa. GAS TRUST.
Form No. 6432.*
In the Circuit Court of Cook County, Term, iS88.
State of Illinois, \
Cook County. j sct '
Daniel Webster, attorney-general of the state of Illinois,vf\\o sues
for the people of said state in this behalf, comes into court here on
this day, and for the said people, and in the name and by the
authority thereof, 3 at the relation of Francis B. Peabody, according
to the form of the statute in such case made and provided, gives the
court here to understand and be informed, that the Chicago Gas
Light and Coke Company is a corporation, organized under and by
virtue of a charter granted to it by the legislature of the state of
Illinois in the year i S49. . (Here was set out in full the charter, an
amendatory act passed in 1855, and an enabling act of 1869, permitting
said company to increase its capital stock. )
That the People's Gas Light and Coke Company is a corporation
organized under and by virtue of a charter granted to it by the
legislature of the state of Illinois, in iS55. (Here was set out in full
the charter?) That an ordinance was passed by the common council
of the city of Chicago, in iS58, authorizing (Here was set out in full
the ordinance).* That in April, i862, an agreement was entered into
by and between the said Chicago Gas Light and Coke Company, and
the said People's Gas Light and Coke Company, which said agreement
1. Consult the title VERIFICATIONS. nal proceeding, and need not be prose-
2. This information is based on the cuted " in the name and by the authority
facts in People v. Chicago Gas Trust of the people," for it is not an informa-
Co., 130 111. 268. Demurrers to de- tion in the nature of a quo warranto,
fendant's pleas were overruled. On but a civil procedure of a special statu-
appeal from the judgment of the cir- tory character. Chicago Mut. L. In-
cuit court, the supreme court reversed demnity Assoc. v. Hunt, 127 111. 258.
and remanded the cause, with direc- But an information in the nature of a
tions to sustain the demurrer. The quo warranto must be "in the name
court held in this case that a corpora- and by the authority of the people of
tion formed under the general law for the state of Illinois," and conclude
the manufacture and sale of gas cannot " against the peace and dignity of the
clothe itself with power to purchase same." Chesshire v. People, 116 111.
and hold stock in other gas corpora- 493; Hays v. People, 59 111. 94; Don-
tions merely by naming this as one of nelly v. People, n 111. 552.
the objects of its incorporation in the 4. The ordinance referred to in the text
articles filed with the secretary of state, authorized the People's Gas Light and
3. An information filed in a court of Coke Company to lay its mains and
equity against a corporation, for the pipes, etc., in the streets, etc., of said
purpose of dissolving it, is not a crimi- city.
5 E. of F. P. 43. 673 Volume 5.
6432. CORPORATIONS. 6432.
provided {Here was set out in full the agreement and also the substance
of a certain litigation between the two gas companies)}-
That the said Chicago Gas Light and Coke Company received subscrip-
tions to its capital stock to the amount olfour million nine hundred and
eighty-four thousand two hundred dollars and issued certificates for one
hundred and ninety-nine thousand three hundred and sixty-eight shares of
such stock, each share for twenty-five dollars. That the People s Gas
Light and Coke Company received subscriptions to its capital stock to
the amount of four million dollars, and issued certificates for forty
thousand shares, of one hundred dollars each. That the two said
companies laid their mains and pipes in the streets of the city of
Chicago, in the state of Illinois, and operated their works, and fur-
nished gas to the city and its inhabitants, the former after April,
i862, in the north and south divisions and the latter after the same
date in the west division of the said city.
That in January, i&82, the Consumers' Gas, Fuel and Light Com-
pany of Chicago, Illinois, was organized under the general Incorpora-
tion act of 1872, and was authorized, by an ordinance of the common
council of Chicago, passed April 28, 1882, to construct and operate
its works in that city and to lay its pipes and mains under the streets
(describing them), and proceeded to lay its pipes in the north and
south divisions and to supply the inhabitants with gas, and that, by
reason of the foreclosure of a trust deed given by the last named
company, its property, rights and franchises passed to and became
vested in the Consumers' Gas Company, a corporation organized in
November, iS86, under the general Incorporation act.
That the said Consumers' Gas Company was duly incorporated under
the laws of the state of Illinois, with a capital stock of five million
dollars, divided into fifty thousand shares of one hundred dollars each,
and that said company after the date of such transfer to it, used the
works and pipes and other machinery and apparatus in manufactur-
ing and distributing gas in the said city of Chicago.
That the Equitable Gas Light and Fuel Company of Chicago was
organized under the laws of the state of Illinois, in August, i885,
under the general Incorporation law, with a capital stock of three
million dollars, divided into thirty thousand shares, of one hundred dol-
lars each, and that an ordinance was passed by the common council
of the city of Chicago, giving the said company the right to lay down
gas pipes and mains in the streets of said city, and such other rights
as were necessary and useful in carrying out its purposes, and that
1. The agreement referred to in the text construed to be void as creating a
provided in effect for an exchange of monopoly, and being against public
the mains and pipes of one company in policy, in Chicago Gas Light, etc., Co.
one part of the city for the mains and v. People's Gas Light, etc., Co., 121 111.
pipes of the other company in another 531.
part of the city, each company agreeing The litigation referred to in the text
with the other to have the exclusive was an action for specific performance
right of supplying gas in its part of the of a contract between the two com-
city for one hundred years, neither to panics, the facts and result of which
interfere with the business of the other are given in Chicago Gas Light Co. v.
in its territory. This contract was People's Gas Light, etc., Co., 121 111. 530.
674 Volume 5.
6432. CORPORATIONS. 6432.
said company kept and maintained such gas mains, pipes and other
apparatus needful and usefuf in its business of manufacturing gas,
and sold the gas so manufactured in the south division of the said city
of Chicago.
That the four companies above named, to wit: the Chicago Gas
Light and Coke Company, the People 's Gas Light and Coke Company, the
Consumers' Gas Company, and the Equitable Gas Light and Fuel Com-
pany of Chicago, were on April 29, i87, and have been and are the
only gas companies engaged in that business and occupying the
streets with gas mains in said city; that, in the ordinances giving to
the Consumers' Gas, Fuel and Light Company (succeeded by the Con-
sumers' Gas Company) and to the Equitable Gas Light and Fuel Com-
pany the right to occupy the streets, it was provided that such ordi-
nances should not take effect until said companies had given bonds
binding themselves respectively not to sell, lease or transfer their
franchises and privileges to any other gas company and not to enter
into any combination with any other company concerning the rate
or price to be charged for gas; that each of said corporations was by
law designed to be and of right ought to be a separate, distinct, inde-
pendent and competing corporation for the manufacture, sale and
furnishing of illuminating gas to the consumers thereof in said city;
that said four companies when combined and operating under one
management or power of control, having a common interest to sub-
serve, form a monopoly of the business of supplying and selling
illuminating gas to the said city and its inhabitants.
And that heretofore, to wit, on the twenty-ninth day of April, i87,
at the said county of Cook, the Chicago Gas Trust Company was, and
from thence hitherto hath been, and still is, a corporation and body
politic, organized and existing under the laws of the state of Illinois,
to wit: "An Act entitled an act concerning corporations," approved
April 18, 1872, and the several acts amendatory thereof; and that the
said Chicago Gas Trust Company for and during the period of twelve
months or more last past, at the county of Cook aforesaid, has usurped
and unlawfully exercised, and now usurps and unlawfully exercises,
powers, liberties, privileges and franchises not conferred by law, to
wit, the power, liberty, privilege and franchise of obtaining, by pur-
chase, or in exchange for its own stock, and holding and owning, and
then and there did purchase and receive in exchange for its own
stock, and now holds, a majority and controlling interest of and in
the shares of capital stock of the said Chicago Gas Light and Coke
Company, the said People s Gas Light and Coke Company, the said Equi-
table Gas Light and Fuel Company of Chicago, and the Consumers' Gas
Company, respectively (as amended May 27, i8##), and hath thereby,
in manner and at the place aforesaid, unlawfully acquired and holds
the power to manage and control the said four corporations, to wit,
the said Chicago Gas Light and Coke Company, the said People's Gas
Light and Coke Company, the said Equitable Gas Light and Fuel Com-
pany of Chicago, and the said Consumers' Gas Company, and hath
thereby, and in the manner and at the place aforesaid, destroyed the
diversity of interest and motive for competition between them, which
would otherwise exist, in the manufacture, distribution and sale of
675 Volume 5.
6433. CORPORATIONS. 6433.
illuminating gas to the city of Chicago and its inhabitants, in said
county, and hath thereby usurped and unlawfully secured to itself,
in manner aforesaid, and, by means of holding such majority and
controlling interest in the shares of stock of said four last mentioned
gas companies, now usurps and unlawfully holds, the power, liberty
and franchise of maintaining, through said four several gas com-
panies last mentioned, a virtual monopoly in the business of furnish-
ing illuminating gas to said city of Chicago and the inhabitants
thereof, and to the consumers of such gas in said city, to wit, at the
place aforesaid, to the great detriment and injury of the people of
the state Q{ Illinois; all of which said powers, privileges and franchises
so exercised by it as aforesaid, though not conferred by law, the said
Chicago Gas Trust Company, at and within said county, upon the peo-
ple of the state of Illinois, hath so usurped and unlawfully exercised,
and now doth so usurp and unlawfully exercise, contrary to law and
the form of the statute in such case made and provided, and against
the peace and dignity of the people of the state of Illinois.
Whereupon the said George Hunt, attorney-general, for the said
people and in the name and by the authority thereof, at the relation
of the said Francis B. Peabody, prays the consideration of the court
here in the premises, and that due process may be awarded against
the said Chicago Gas Trust Company in this behalf to answer to this
court by what warrant it exercises the powers and privileges herein-
above described.
George Hunt, Attorney-General.
( Verification.)*
bb. OIL TRUST.
BECAUSE OF CREATION OF MONOPOLY CAUSED BY TRANSFER OF STOCK
TO CERTAIN TRUSTEES.
Form No. 6433.
(Precedent in State v. Standard Oil Co., 49 Ohio St. 137.)*
[In the Supreme Court of the State of Ohio.
The State of Ohio ex relatione David K. \
Watson, Attorney-General, plaintiff, I Amended petition.]'
against j
The Standard Oil Company, defendant. J
Now comes David K. Watson, the duly elected, qualified and act-
ing Attorney-General of the state of Ohio, and gives the court to
1. Consult the title VERIFICATIONS. stockholders transfer their stock to
2. This action was brought to oust the trustees on condition that other corn-
defendant of the right to be a corpora- panies and individuals do the same,
tion, because of an abuse of its fran- such a proceeding tends to create a
chises by becoming a party to an monopoly, notwithstanding the stock-
agreement which was against public holders act individually, where the re-
policy. The supreme court rendered suit of their combined acts in effect
judgment ousting defendant from the becomes the act of the corporation,
right to make the agreement set forth 3. The words within [ ] do not ap-
in the petition and of the power to per- pear in the reported case, but have
form the same, holding that where been added to complete the form.
676 Volume 5.
6433. CORPORATIONS. 6433.
understand and be informed,* that on or about the 10th day of
January, A. D. i870, the defendant, The Standard Oil Company,
was formed and organized as a corporation under and according to
the laws of the state of Ohio.
That the only purpose of said defendant, as set forth in its articles
of incorporation, is "the manufacture of petroleum and to deal in petro-
leum and its products" \ that at the time of the defendant's incorpo-
ration, its capital stock was fixed at $1,000,000.00; that subsequently,
to wit: on or about the 12th day of February, A. D. i87, the defend-
ant's capital stock was increased to the sum of 2,500, 000. 00 ; that
afterwards; to wit: on or about the 13th day of March, A. D. i875,
said capital stock was increased to the sum of 8,500,000.00; and
that after its organization, as aforesaid, said defendant entered upon
and continued generally in the pursuit of its corporate objects, with
its principal place of business in the city of Cleveland, in this state,
until on or about the date of the trust agreements hereinafter com-
plained of and set forth.
Plaintiff further avers, that in violation of law and in abuse of its
corporate powers, and in the exercise of privileges, rights and fran-
chises not conferred upon it, defendant, on or about the 2d day of
January, A. D. i8<, and again on or about the 4th day of said month
and year, entered into and became a party to certain trust agree-
ments, and ever since then has, in the manner and to the extent
below stated, observed, performed and carried out said agreements,
copies of which are hereinafter set out. That said defendant so
entered into and became a party to, and carried out and observed
and performed the same as follows, to wit: All of the owners and
holders of its capital stock, including all the officers and directors of
the said defendant company, signed said agreements, without attach-
ing the corporate name and seal of said defendant company thereto,
and the official designations of its officers. That prior to the dates
of the trust agreements aforesaid, defendant's capital stock con-
sisted of 35,000 shares of 100.00 each, and upon the signing of
said agreements in the manner aforesaid, 34,993 shares of said stock,
belonging to the persons who signed the agreements in manner above
set forth (in what proportions, however, plaintiff is unable to state),
were transferred, by defendant's transferring officers, upon defend-
ant's stock-books, to the certain nine trustees who were appointed
and named in the first one of said trust agreements, upon the request
of the respective owners of said shares and in pursuance of said
trust agreements, the remaining seven of said shares of stock being
retained by, or transferred to, the directors of defendant company;
that at the time said transfer of stock was made, there were seven
directors of defendant company, and each one of the seven held one
share of the stock aforesaid, but the number of said directors was
thereafter reduced to five, who still hold and vote said seven
shares of stock and no more. That in lieu of the transfer of said
34,993 shares, as aforesaid, to the nine trustees above mentioned,
an equal amount, in par value of certificates of the Standard Oil
Trust, which were provided for and described in said trust agree-
ments, were issued and delivered by said nine trustees to the persons
677 Volume 5.
6433. CORPORATIONS. 6433.
aforesaid, from whom said nine trustees had received said 34,993
shares of stock in the defendant company; that the capital stock of
said defendant company is still $3,500,000.00, and the nine trustees
before mentioned still hold and control the 34,993 shares thereof
which were transferred to them as above stated; that by virtue of so
holding and controlling said shares, said nine trustees have been ever
since the signing of said agreements, and still are, able to choose
and have chosen annually such boards of directors of defendant
company as they (said nine trustees) have seen fit, and are able to,
and do, control the action of the defendant in the conduct and man-
agement of its business; that some of the directors of defendant
company, including its president, have been, since the date of said
agreements, and still are, members of the board of nine trustees pro-
vided for in said trust agreements as aforesaid, the president of the
defendant company having been, and being now, the president of
said board of nine trustees.
That defendant has never taken any corporate action, or made any
complaint against its said stockholders or its directors and officers
signing said trust agreements, or either of them, nor against its said
stockholders or officers surrendering their stock in the defendant
company to said nine trustees, nor against its stockholders or officers
or directors receiving the Standard Oil Trust certificates which were
issued and delivered to them as aforesaid by said nine trustees in ex-
change for the 34,993 shares of defendant's stock, nor against any
of the acts herein recited; and that none of the officers, directors
or stockholders of defendant company, have at any time objected or
made complaint against such surrender and exchange of stock or
against any of said recited acts, and on the contrary defendant, in
its corporate capacity, and through its officers and stockholders, has
ever since the acts in question acquiesced in such transfer and ex-
change, and in the annual election by said nine trustees of the
directors for the defendant as well as in all said recited acts. That the
directors of defendant company who are chosen in manner aforesaid,
either directly or through their employees, manage the business of
that company so as not to conflict with the policy fixed from time to
time by the nine trustees aforesaid; that the net earnings of defendant
company have been, ever since the signing of said agreements, and
still are from time to time, declared and paid out as dividends upon
its capital stock; that the nine trustees appointed under said trust
agreements as aforesaid, have received the proportions of such divi-
dends, which were properly distributable and payable upon the stock
held by said nine trustees in defendant company; that there are a
large number of other corporations (plaintiff being unable to ascertain
or state the exact number) in the United States, whose organizations
were made, stock is held, and directors elected, and whose affairs
and business and dividends are conducted and paid under and pur-
suant to the provisions of the trust agreements hereinafter set forth,
in a manner and to an extent similar to that herein described in
respect to defendant, and from the dividends so accumulated in the
hands of said nine trustees, dividends are, from time to time, as the
interests of the trust justify, declared and paid out by said nine trus-
678 Volume 5.
6433.
CORPORA TIONS.
6433.
tees to the holders of the Standard Oil Trust certificates which have
been issued by them, so that the holders of the 34,993 shares of said
Standard Oil Trust certificates which were received in lieu of a like
number of shares of defendant's stock transferred in manner afore-
said upon the books of defendant company, to said nine trustees, do
not receive the dividends which are payable from the earnings of
defendant company, but receive dividends only from the accumu-
lated earnings aforesaid, which are derived from the various similar
companies aforesaid, and held and distributed as aforesaid by said
nine trustees.
The following are correct copies of two trust agreements herein-
before mentioned and referred to: (Here were set out the trust agree-
ment 'j. 1
1. The trust agreements referred to in
the text were as follows: "This agree-
ment, made and entered into upon this
second day of January, i8<fe. by and be-
tween all the persons who shall now
or may hereafter execute the same as
parties thereto, witnesseth:
I. It is intended that the parties
to this agreement shall embrace three
classes, to wit: (i) All the stockhold-
ers and members of the following cor-
porations and limited partnerships
(naming the corporations); also all the
stockholders and members of such
other corporations and limited partner-
ships as may hereafter join in this
agreement at the request of the trus-
tees hereinbefore provided for. (2) The
following individuals, to wit: (names of
the individuals}; also all such individuals
as may hereafter join in this agreement
at the request of the trustees herein
provided for. (3) A portion of the stock-
holders and members of the following
corporations and limited partnerships,
to wit (names of the corporations and
partnerships); also stockholders and
members (not being all thereof) of
other corporations and limited part-
nerships who may hereafter join in this
agreement at the request of the trus-
tees herein provided for.
II. The parties hereto do covenant
and agree to and with each other, each
in consideration of the mutual cove-
nants and agreements of the others, as
follows:
(i) As soon as practicable, a corpora-
tion shall be formed in each of the fol-
lowing states under the laws thereof,
to wit: Ohio, New York, Pennsylvania
and New Jersey; provided, however,
that instead of organizing a new cor-
poration, any existing charter and
organization may be used for the pur-
pose when it can advantageously be
done.
(2) The purposes and powers of said
corporation shall be to mine for, pro-
duce, manufacture, refine and deal in
petroleum and all its products ar.d all
the materials used in such business,
and transact other business collateral
thereto. But other purposes and
powers shall be embraced in the sev-
eral charters, such as shall seem
expedient to the parties procuring the
charter, or, if necessary to comply
with the law, the powers aforesaid may
be restricted and reduced.
(3) At any time hereafter, when it
may seem advisable to the trustees
herein provided for, similar corpora-
tions may be formed in other states
and territories.
(4) Each of said corporations shall be
known as the Standard Oil Company of
(and here shall follow the name
of the state or territory by virtue of the
laws of which said corporation is or-
ganized).
(5) The capital stock of each of said
corporations shall be fixed at such an
amount as may seem necessary and ad-
visable to the parties organizing the
same, in view of the purpose to be
accomplished.
(6) The shares of stock of each of
said corporations shall be issued only
for money, property or assets, equal at
a fair valuation to the par value of the
stock delivered therefor.
(7) All of the property, real and per-
sonal, assets and business of each and
all of the corporations and limited
partnerships mentioned or embraced
in class first shall be transferred to and
vested in the said several Standard Oil
companies. All of the property, assets
and business in, or of, each particular.
679
Volume 5.
6433.
CORPORA TIONS.
6433.
The plaintiff further avers that after the execution and delivery of
the trust agreement aforesaid, to wit: on the 4th day of January, A. D.
1 882, in violation of law and in abuse of its powers and in exercise of
privileges and franchises not conferred upon it, the defendant, acting
through the same parties as before alleged in respect of the above
recited agreement, together with the subscribers thereto, who were
state, shall be transferred to and vested
in the Standard Oil Company of that
particular state, and in order to accom-
plish such purpose the directors and
managers of each and all of the several
corporations and limited partnerships
mentioned in class first are hereby
authorized and directed by the stock-
holders and members thereof (all of
them being parties to this agreement)
to sell, assign, transfer, convey and
make over, for the consideration herein-
after mentioned, to the Standard Oil
Company or companies of the proper
state or states, as soon as said corpora-
tions are organized and ready to receive
the same, all the property, real and per-
sonal, assets and business of said cor-
porations and limited partnerships.
Correct schedules of such property,
assets and business shall accompany
each transfer.
(8) The individuals embraced in class
second of this agreement 'do each for
himself agree, for the consideration
hereinafter mentioned, to sell, assign,
transfer, convey and set over all the
property, real and personal, assets and
business mentioned and embraced in
schedules accompanying such sale and
transfer, to the Standard Oil Company
or companies, of the proper state or
states, as soon as the said corporations
are organized and ready to receive the
same,
(9) The parties embraced in class
third of this agreement do covenant
and agree to assign and transfer all of
the stock held by them in the corpora-
tions or limited partnerships herein
named, to the trustees herein provided
for, for the consideration and upon the
terms hereinafter set forth. It is un-
derstood and agreed that the said
trustees and their successors may here-
after make the assignment of stocks in
the same or similar companies upon
the terms herein provided, and that
whenever and as often as all the stocks
of any corporation or limited partner-
ship are vested in said trustees, the
proper steps may then be taken to have
all the money, property, real and per-
sonal, of sucri corporation or partner-
ship assigned and conveyed to the
Standard Oil Company of the proper
state, on the terms and in the mode
herein set forth, in which event the trus-
tees shall receive stocks of the Standard
Oil companies equal to the value of the
money, property and business assigned,
to be held in place of the stocks of the
company or companies assigning such
property.
(10) The consideration for the trans-
fer and conveyance of the money,
property and business aforesaid to each
or any of the Standard Oil companies,
shall be stock of the respective Standard
Oil Company to which said transfer or
conveyance is made, equal at par value
to the appraised value of the money,
property and business so transferred.
Said stock shall be delivered to the
trustees hereinafter provided for, and
their successors, and no stock of any
of the said companies shall ever be
issued except for money, property or
business equal at least to the par
value of the stock so issued, nor shall
any stock be issued by any of said
companies for any purpose, except
to the trustees herein provided for, to
be held subject to the trusts hereinafter
specified. It is understood, however,
that this provision is not intended to
restrict the purchase, sale and exchange
of property by said Standard Oil com-
panies as fully as they may be author-
ized to do by their respective charters,
provided only that no stock be issued
therefor except to said trustees.
(u) The consideration for any stocks
delivered to said trustees as above pro-
vided for, as well as for stocks de-
livered to said trustees by persons
mentioned or included in class third of
this agreement, shall be the delivery
by said trustees to the persons entitled
thereto, of trust certificates hereinafter
provided for, equal at par value to the
par value of the stocks of the said
Standard Oil companies so received by
said trustees, and equal to the appraised
value of the stocks of other companies
or partnerships delivered to said trus-
tees. (The said appraised value shall
be determined in a manner agreed
30 Volume 5.
6433.
CORPORA TIONS.
6433.
the same as those whose names were subscribed to the other agree-
ment aforesaid, entered into' and became a party to, carried out and
still continues to observe, perform and carry out, a supplemental
trust agreement, which, if not in words and figures, is, in substance
and effect, as follows: (Here was set supplemental trust agreement.)*
upon by the parties in interest and the
said trustees.) It is understood and
agreed, however, that the said trustees
may, with any trust funds in their
hands, in addition to the mode above
provided, purchase the bonds and stocks
of other companies engaged in business
similar or collateral to the business of
said Standard Oil companies, on such
terms and in such mode as they may
deem advisable, and shall hold the same
for the benefit of the owners of said trust
certificates, and may sell, assign, trans-
fer and pledge such bonds and stocks
whenever they may deem it advanta-
geous to said trust so to do.
III. The trusts upon which said
stocks shall be held, and the number,
powers and duties of said trustees, shall
be as follows:
(I), (2), (3), (4), (5), (6). (Providing for
the number of trustees, their terms of
office, their manner of election, and right
to "vote.)
(7). (Providing for the annual and
special meetings of the owners of trust
certificates, also for the making, amend-
ment and repeal of by-laws.)
(8), (9). (Providing for the filling of
vacancies in the board of trustees?)
(10). (Providing for the transfer and
vesting of stock when a change shall occur
in the board.)
(ll), (12). (Providing for the prepara-
tion and issuance of certificates, to be
known as Standard Oil certificates.)
(13). (Relating to the sale, assignment,
transfer and purchase of stocks. )
(14). (Providing for the disposal of in-
terest and dividends, and the keeping of
account 'T, etc.)
(15). (Providing for the general super-
vision of the affairs of the Standard Oil
Company, and the election by the trustees,
of themselves, to positions.)
(16). (Providing for the appointment of
committees and the number of trustees
who may exercise powers, etc.)
(17). (The trustees may employ and pay
all such agents and attorneys as they deem
necessary in the management of said trust.)
(18). (Providing for salaries of trus-
tees?)
(19). (Naming the principal office, and
for the adoption of rules and regulations
pertaining to the meetings of the board,
and for the election of officers, and the
management of the trust.)
(20). (Providing for an annual state-
ment of trust affairs, and for the winding
up of the trust upon its termination.)
(21), (22). (Providing for the continu-
ance of the trust or its termination after
ten years, and the distribution of the
property and assets.)
(23). This agreement, together with
the registry of certificates, books of ac-
counts, and other books and papers
connected with the business of said
trust, shall be safely kept at the prin-
cipal office of said trustees. (Signatures
omitted.)
1. The supplemental trust agreement
referred to in the text is as follows:
"Whereas, in and by an agreement
dated January 2, \^>8z. and known as
the Standard Trust agreement, the
parties thereto did mutually covenant
and agree, inter alia, as follows, to wit:
That corporations to be known as
Standard Oil companies of various
states should be formed, and that all
of the property, real and personal, as-
sets and business of each and all of the
corporations and limited partnerships
mentioned or embraced in class first of
said agreement should be transferred
to and vested in the several Standard
Oil companies; that all of the property,
assets and business in or of each par-
ticular state should be transferred to
and vested in the Standard Oil Company
of that particular state, and the direct-
ors and managers of each and all of
the several corporations and associa-
tions mentioned in class first were
authorized and directed to sell, assign,
transfer and convey and make over to
the Standard Oil Company, or com-
panies, of the proper state or states, as
soon as said corporations were organ-
ized and ready to receive the same, all
the property, real and personal, assets
and business of said corporations or
associations; and, whereas, it ,is not
deemed expedient that all of the com-
panies and associations mentioned
should transfer their property to the
said Standard Oil companies at the
present time, and in case of some com-
681
Volume 5.
6433. CORPORATIONS. 6433.
Plaintiff further avers, that the nine persons who were appointed
and named as trustees in and under the provisions of said trust
agreements, accepted their several positions and entered upon
the discharge of the trust duties therein mentioned; and some of
said trustees and others, to the number of nine, whose names are
unknown to the plaintiff, have been reappointed and appointed at
various times since the execution of said trust agreements, so that
nine trustees have been ever since then, and still are, acting thereunder,
and each and all of said trustees have been, and are, nonresidents of
the state of Ohio; that the offices and principal place of business of
said trustees have been, ever since the execution of said trust agree-
ments, and still are, in the city of New York, and the elections of
trustees and business transacted by them in their meetings have
been had and done in said city of New York; and that plaintiff had
no knowledge of the existence of either of the aforesaid trust agree-
ments, or of the acts hereinbefore recited, until the latter part of the
year i889.
Plaintiff further avers, that by reason of defendant's stockholders,
directors and officers signing and entering into said trust agreements
and carrying out their provisions and surrendering their stock in
defendant and accepting in lieu thereof certificates issued by the nine
trustees aforesaid, and permitting the corporate powers, business
and property of the defendant to be exercised, conducted and
controlled by said trustees in manner aforesaid, and by reason
of the acts and omissions of defendant hereinbefore recited, said
defendant has forfeited its corporate rights, privileges, powers and
franchises.
Wherefore, plaintiff prays that defendant be found and adjudged
to have forfeited and surrendered its corporate rights, privileges,
powers and franchises, and that it be ousted and excluded therefrom,
and that it be dissolved, and that such other relief be granted in
the premises as to the court may seem just and proper.
David K. Watson, Attorney-General.
panics and associations it may never transfers shall take place, if at all, and
be deemed expedient that the said until said trustees shall so decide, each
transfer should be made, and said com- of said companies shall remain in ex-
panies and associations go out of ex- istence and retain its property and
istence; and whereas it is deemed business, and the trustees shall hold
advisable that a discretionary power the stocks thereof in trust, as in said
should be vested in the trustees as to agreement provided. In the exercise
when such transfer or transfers should of said discretion the trustees shall act
take place, if at all. by a majority of their number, as pro-
Now it is hereby mutually agreed vided in said trust agreement. All
between the parties to the said trust portions of said trust agreement relat-
agreement, and as supplementary there- ing to this subject shall be considered
to, that the trustees named in the said so changed as to be in harmony with
agreement and their successors shall this supplemental agreement,
have the power and authority to decide In witness whereof, the said parties
what companies shall convey their said have subscribed this agreement, this
property as in said agreement contem- ^M day oi January, i8<?."
plated, and when the said sales and {Signatures omitted.)
682 Volume 5.
6434. CORPORA TIONS. 6434.
cc. SUGAR TRUST.
Form No. 6434.'
Supreme Court of the State of New York.
The People of the State of New "]
York, plaintiffs,
against v Amended Complaint.
The North River Sugar Refining
Company, defendant.
The people of the state of New York, by their attorney-general,
upon leave of court duly granted, in this their amended complaint, on
information and belief, allege:*
I. For a first cause of action, that defendant is a corporation
created and organized under and pursuant to the act of the legis-
lature of New York, passed February 17, 1848, and entitled "An
Act to authorize the formation of corporations for manufacturing,
mining, mechanical and chemical purposes," and the acts amenda-
tory thereof; that defendant's certificate of incorporation, filed on
or about the ninth day of February, i8&5, declares its name to be
" The North River Sugar Refining Company" its place of business in
the city of New York, and its object the manufacture and sale of
sugar, syrups and molasses; that in violation of law and in abuse of
its powers, and in the exercise of privileges and franchises not con-
ferred upon it defendant, on or about \htfirst day of October, i8<?7,
in the city of New York, together with the other subscribers thereto,
entered into and became a party to and carried out the following
agreement, namely: (ffere was set out the agreement^
That thereafter, and under and pursuant to the provisions of said
agreement, the capital stock of defendant was transferred to said
board, The Sugar Refineries Company, and in lieu thereof certificates
were issued by said board; that, pursuant to said agreement, such of
the parties thereto as were not then incorporated became corporate
bodies, and their capital stock was transferred to said board and cer-
tificates issued in lieu thereof; that the greater part in number and
value of said certificates is owned by the members of said board;
that by means of said agreement, and the powers thereby conferred
upon said board, said board monopolizes the manufacture and sale
of refined sugar in the state of New York, and is enabled to control at
will the production and price of said sugar in said state and in the
1. This complaint was copied from the duties to such an extent as to justify a
record in People v. North River Sugar judgment of dissolution.
Refining Company, 121 N. Y. 582. The 2. The agreement referred to in the text
complaint alleged that defendant was a is a lengthy instrument in writing de-
corporation organized under thegeneral nominated a " Deed " providing fora
Manufacturing act, and that in viola- board called " The Sugar Refineries
tion of law and in abuse of its powers Company," stating the objects of the
became a party to an illegal agreement, company, defining the duties of the
The court of appeals affirmed the judg- officers, enumerating the plans, fiscal
ment of the general term of the su- arrangements, etc. For an agreement
preme court, finding that the corpora- of analogous provisions and import
tion had violated its charter and failed see supra, note I, p. 679.
in the performance of its corporate
683 Volume 5.
6435. CORPORATIONS. 6435.
United States; that, in exercise of the powers conferred by said agree-
ment, said board controls the action of defendant and the other cor-
porations, parties to said agreement, in the conduct of their business
and controls and regulates the production and price of refined sugar
in the state of New York and in the United States; that in the exer-
cise of the said powers said board has limited the production and
increased the price of said sugar in said state and in said United
States, and that said agreement constitutes a combination to do an act
injurious to trade and commerce, to which combination defendant is
a party.
II. For another and separate cause of action, plaintiffs, repeating
the allegations of the preceding count, aver that, for and during the
year iS88, defendant wilfully neglected and omitted, and still wilfully
neglects and omits, to make, file and publish any report as prescribed
and required by section twelve of the act by and under which defend-
ant was created a corporation.
III. For another and separate cause of action, plaintiff s, repeating
the allegations of the first above count, aver that, in December, i87,
defendant went out of business and ceased its operations, and thence-
forth to the present time omitted and neglected to refine or manu-
facture or sell sugar, syrups or molasses, and has failed and still fails
to do any business or to exercise its powers.
Wherefore, plaintiffs demand judgment that defendant, the North
River Sugar Refining Company, be dissolved, its charter vacated, and
its corporate existence annulled; that it be enjoined from acting as a
corporation, and a receiver of its property be appointed, and for such
other and further relief as may be appropriate, with costs.
Chas. F. Tabor, Attorney-General,
Plaintiff's Attorney.
(*/) Improper Consolidation, Unlawful Lease and Nonuser.
Form No. 6435.
(Precedent in State v. Atchison, etc., R. Co., 24 Neb. 143.)*
[In the Supreme Court of the State of Nebraska.
The State of Nebraska, ex rel. William ^.
Leese, attorney-general, plaintiff, I Information in the nature of
against Quo Warranto
The Atchison and Nebraska Railroad
Company, defendant. 2
Now comes William Leese, attorney-general of the state of
Nebraska, petitioner, and gives the court to understand and be
informed:] 3
I. That] on the 25th day of April, A. D. i871, articles of incorpora-
1. This petition was sustained against in a proceeding of this nature to forfeit
a demurrer based upon two grounds: franchises and oust the corporation
1st, That there is a defect of parties de- from its franchises for misuser or non-
fendant. 2d, That the facts stated in user is the corporation itself. State v.
the information are not sufficient to Atchison, etc., R. Co., 24 Neb. 143.
entitle the state to the relief prayed for 3. The words in [ ] do not appear in
against the defendant. the reported case, but have been added
2. The only necessary party defendant to complete the form.
684 Volume 5.
6435. CORPORATIONS. 6435.
tion were duly filed in the office of the secretary of state of Nebraska
by A. J. Cropsey, A. A. Egbert, T. E. Calvert, George Morrison and
O. Chanute, duly incorporating, under the laws of the state of
Nebraska, the Atchison, Lincoln and Columbus Railroad Company.
[That] the object and purpose of this company wa"s (stating object of
incorporation).' 1 A copy of the articles of incorporation is attached
to the petition as an exhibit.
II. That on the 18th day of August, A. D. i&71, and long before
the aforesaid line of railroad was completed, the said Atchison, Lin-
coln and Columbus Railroad Company consolidated all of its stock and
property, of every kind and nature, with the stock and property of
every kind of the Atchison and Nebraska Railroad Company, a cor-
poration organized under the laws of the state of Kansas, and it was
agreed in said articles of consolidation, a copy of which was filed in
the office of the secretary of state of this state, that the aforesaid
two consolidating companies should constitute but one corporation
in law, and to be known and named the Atchison and Nebraska
Railroad Company. A copy of the said articles of consolidation is
attached to the petition, and that part of the line of railroad of the
defendant lying and being in the state of Nebraska is sought to be
affected by this proceeding.
III. Your petitioner would further give the court to understand
and be informed that, at the time of the incorporation of the Atchison,
Lincoln and Columbus Railroad Company, as well as at the time of the
consolidation, the financial circumstances of the defendant were
limited, and they were unable to build the said railroad from the
south line of the state of Nebraska to Columbus, as aforesaid, and the
said company applied to the tax-payers of the several counties
through which said line of railroad was to pass for aid, to enable the
said company to construct and maintain their railroad as aforesaid.
IV. That the tax-payers and inhabitants along said proposed line
of railroad, for the purpose of obtaining a railroad and getting direct
communication with Kansas, Missouri, Illinois, and other eastern and
southern states, did, as in such cases made and provided, vote, issue,
and deliver to the defendant a large amount of ten per cent, coupon
bonds, aggregating, from the counties of Richardson, Pawnee, John-
son, Gage and Lancaster, more than 500,000.
V. That on or about the 15th day of January, i&72, said railroad
was completed to Lincoln, in Lancaster county, Nebraska, and from
said day until January 1, i880, was operated and maintained as a
competing line of railroad with the Burlington and Missouri River
Railroad Company in Nebraska (a corporation organized under the
1. The object and purpose of the com- of the state of Nebraska, where the
pany as stated in the information was Atchison and Nebraska Railroad Com-
" to construct, maintain and operate a pany crosses said state line, and from
line of railroad, with single or double thence running northward and west-
tracks, and with all the necessary ward through the counties of Richard-
branches, fences, bridges, warehouses, son. Pawnee, Gage, Johnson, Lancaster,
elevators, station houses, and such other Se-wirJ and Butler, by way of Lincoln,
appurtenances as might be thought to the town of Columbus, at the union
necessary in extending said line of rail- of the Pacific railway in rlatte county."
road from a point on the southern line
685 Volume 5.
6435. CORPORATIONS. 6435.
laws of this state), for all the freight and passenger traffic lying and
being between the road of this defendant and a branch line of the
aforesaid Burlington and Missouri River Railroad Company running
from (describing branch lines)." 1 That during all of the time aforesaid
there was a strong competition between the aforesaid lines, thereby
producing a reasonable but low rate of charges for freight and
passenger traffic, and the people living within the territory above de-
scribed received a great advantage, by reason of the low and reason-
able rates charged for the transportation of freight and passengers
on the defendant's railroad, resulting from the competition aforesaid.
That by the competition aforesaid, the freight belonging to the
people using defendant's line of railroad was shipped south to the
city of Atchison, in Kansas^ and from there connected with other lines
of railroads that were competing with the aforesaid Burlington and
Missouri Rirer Railroad for Chicago freight, and for other points
east. That freight coming from Chicago and other eastern points to
the people living along the line of the defendant's railroad was brought
at greatly reduced rates, and all the people living in the southeastern
quarter of our state received the many advantages derived from
competing railroads.
VI. That on theory/ day of January^ A. D. i&$0, as aforesaid, for
the purpose of defrauding the people living along the line of their
railroad, and for the purpose of destroying the competition as
aforesaid, the said defendant, the Atchison and Nebraska Railroad
Company, disregarding its duties to the state and to the public, unlaw-
fully and wilfully entered into an agreement with the aforesaid Bur-
lington and Missouri Rirer Railroad Company to (stating substance of
agreement)* A copy of said lease is attached to and made a part of
the petition. In pursuance with the terms of said lease, the defend-
ant, on said day, gave to the said Burlington and Missouri Rirer Rail-
road Company full and absolute possession and control of all its railroad,
roadway, rights, privileges and franchises, its earnings, and property
of every description. And that ever since the 1st day of January,
A. D. i&&>, the defendant company has utterly and wilfully failed and
neglected to maintain or operate their said railroader any other rail-
road in this state, and has failed in the discharge of its duty to the
state and to the public during all of said time, whereby the rights,
privileges and franchises of said defendant in the state of Nebraska
have become and are subject to forfeiture.
1. The branch lines referred to in the tion, to the above last named railroad
text were those running from Lincoln, company, and on said last named day
in Lancaster county, to Nemaha City the defendant did grant, lease and de-
in Nemaha county by way of Nebraska raise to the said Burlington and Mis-
City, on the east side, and with a branch souri River Railroad, for the full term
line of said Burlington and Missouri of nine hundred and ninety-nine years,
River Railroad Company running from all of their railroad, roadway, lands
Lincoln by way of Crete to Beatris in connected with the use and operation of
Gage county, on the west side of the their road, and all machine shops, de-
defendant's line. pots, and all easements and appurte-
2. The agreement referred to in the text nances thereunto belonging, as well as
was to "lease their said line of railroad, all such property as should thereafter
and all their rights, privileges, fran- be acquired."
chises, and property of every descrip-
686 Volume 5.
6435. CORPORAT/O 6435.
VII. That afterwards, on the oth day of April, iSSO, the defendant
conveyed and assigned absolutely all of its lands, bonds, moneys, and
property of every description, not included in the lease hereinbefore
mentioned, to the aforesaid Burlington and Missouri River Railroad
Company. A copy of said conveyance and assignment is attached to
and made a part of the petition.
VIII. And your petitioner would further show to the court that
the defendant's line of railroad and the line owned by the Burlington
and Missouri River Railroad Company in Nebraska were not connecting
or continuous lines of railroads, but in truth and in fact the two roads
were parallel and competing lines, and the lease, conveyance and
assignment as aforesaid were and are ultra vires, in violation of sec-
tion three of article eleven of the constitution of the state of Nebraska,
and against public policy.
IX That on the said first day of January, A. D. i&80, the aforesaid
Burlington and Missouri River Railroad Company in Nebraska, sold,
assigned and transferred all of their railroads, leaseholds, rights of
action, contracts, stock, franchises, and all other property of every
description whatsoever, to the Chicago, Burlington and Quincy Railroad
Company, a foreign corporation, incorporated under the laws of the
state of Illinois and Iowa, and not incorporated under the laws of
Nebraska, nor has it filed a copy of its articles of incorporation with
the secretary of state of Nebraska. A copy of the above mentioned
deed of sale and assignment is attached to the petition and made a
part thereof.
X. That after the defendant made the lease of its railroad and the
transfer of all its property, as aforesaid, the management and control
of the defendant's line was maintained and operated by the said Bur-
lington and Missouri River Railroad Company, and by the transfer of
the said last named company to the Chicago, Burlington and Quincy
Railroad Company, and the said Chicago, Burlington and Quincy Rail-
road Company still continues to operate and maintain the defendant's
line in this state, thereby consolidating all of the property, franchises
and earnings of the defendant's line with the aforesaid competing and
parallel lines of the said Burlington and Missouri River Railroad Com-
pany, as now owned and controlled by said Chicago, Burlington and
Quincy Railroad Company.
XI. That from and after the date of the above transfer, to wit,
January 1, i&80, the rates of freight for transportation on the
defendant's lines were increased by the lessee and its assignee from
fifty to seventy-five per cent, of the rate charged by the defendant,
and in many cases it was doubled. That all competition was destroyed
in the southeastern quarter of the state by reason of the aforesaid
transfers, and all the grain, stock, and other classes of transfer
along the defendant's line, shipped to eastern and southern points,
was carried north by the lessee and the volume of business done
along the defendant's line was diverted outside of the usual channel
of trade. That the people living along the line of the defendant's
road are defrauded by the transfers aforesaid, and the large amount
of bonds voted and delivered to the defendant, to aid in the con-
struction of the railroad, are without consideration, and yet the
-,-T Volumes.
6436. CORPORATIONS. 6436.
said bonds are still presumed to be a legal liability against said
counties.
XII. That the defendant corporation, the Atchison and Nebraska
Railroad Company, has ceased to maintain and operate any railroad
in the state of Nebraska. That said railroad corporation, the Atchi-
son, Lincoln and Columbus Railroad Company, as consolidated with
the Atchison and Nebraska Railroad Company, has wilfully failed and
neglected to keep and maintain any railroad in this state, as by their
articles of incorporation they are required to do, but on the con-
trary has abandoned its lawful business, and the end and object for
which it was created, whereby the rights and privileges and fran-
chises of said defendant corporation in this state have become sub-
ject to forfeiture. Wherefore plaintiff prays that the corporate
rights, privileges and franchises may be declared forfeited, and the
said defendant be ousted therefrom. That all the rights, privileges
and franchises of the defendant within the state of Nebraska be can-
celed and annulled, and that said corporation be dissolved. That
the court may appoint three trustees to take charge of the property
of said corporation to collect the debts, and pay the liabilities, if
any, and the surplus paid into the state treasury for the benefit of
the school fund, as in other cases of forfeiture. And for such other
and further relief as equity and justice may require.
[ William Leese, Attorney-General.]
(e) Improper Use of Funds by Building and Loan Association.
Form No. 6436.
(Precedent in State v. Greenville Bldg., etc., Assoc., 29 Ohio St. 92.)'
{Title of court and cause as in Form No. 6^.33.)
John Little, Attorney-General of the State of Ohio, upon complaint
to, and inquiry by him in that behalf made, now comes and gives the
court here at the December term thereof, i87<?, to understand and be
informed that the defendant, the Greenville Building and Saving Asso-
ciation, is, and since April , i869, has been an incorporated com-
pany of said state, formed and organized under the act of the general
assembly thereof, entitled "An Act to enable associations of persons
to raise funds to be loaned among their members for building home-
steads and for other purposes, and to become a body corporate;"
and that it has continuously hitherto since said date, within said
state, to wit, at the county of Darke, offended against the laws of
the state, misused its corporate authority, franchises and privileges,
1. Judgment was entered in this case on rate of interest, and from using its funds
the several findings as follows: i. That in loaning the same to or in purchas-
the defendant be ousted from the as- ing and discounting notes of persons
sumed right of allowing any member other than members or depositors,
more than twenty shares of stock in 3. That defendant be ousted from the
his own right. 2. That defendant be assumed right of fixing a minimum
ousted from the assumed right of using premium upon loans and refusing to
its funds in making loans to members grant loans to members unless the pre-
or depositors, upon their promissory mium paid equals or exceeds the amount
notes, at the rates greater than the legal so fixed.
688 Volume 5.
6437.
CORPORA TIONS.
6437.
not granted to it, and especially in the following particulars and
matters, to wit:
1. It has unlawfully allowed its members to hold more than twenty
shares of stock each in their own right, and it still doth the like.
2. It has unlawfully used its funds in buying orders and bonds and
in discounting notes and mortgage securities and commercial paper,
in doing a general banking business, and in loaning its funds to per-
sons other than its members and depositors, by discounting their
notes, orders, and securities, and it still doth the like.
3. It has unlawfully loaned its funds to others than its members
and depositors, and charged and received on such loans usurious
rates of interest, and it still doth the like.
4. It has unlawfully refused and declined to loan its funds to its
members for use in building homesteads, and for other purposes, and
it still doth the like. All which things the defendant will continue
to do unless prevented by the judgment of this court.
Wherefore the plaintiff prays the process and judgment of the
court in the premises, and for all proper relief.
John Little, Attorney-General.
(/) Insolvency,
aa. AT INSTANCE OF ATTORNEY-GENERAL.
Form No. 6437.'
{Title of court and cause, and commencement as in Form No.
/**.)
I. That at the times (continuing as in paragraph 1 of Form No.
6440).
1. New York. Code Civ. Proc.,
1785 et seq. See also list of statutes
cited supra, note 2, p. 658.
Insolvent Banking Corporation. In
State v. Bank of New England, 55
Minn. 139, plaintiff's complaint prayed
that the bank be adjudged insolvent,
and that an injunction issue restrain-
ing it from exercising corporate rights,
etc. On appeal from the district court
refusing to appoint a receiver and grant
an injunction, the case was reversed,
the court holding that the action could
be maintained notwithstanding the
corporation had made an assignment
under the insolvent law. A complaint
based upon the facts in that case might
be as follows:
(Commencing as in Form No. 6439,
and continuing down to *.)
" i. That the defendant the Bank of
New England is a corporation, having
been duly organized in December, 1897,
under chapter 3 of the General Statutes
(1878) of the state of Minnesota, and
having acquired banking powers under
and by virtue of its said organization,
located and having its principal busi-
ness office in the Guaranty Loan Build-
ing, in the city of Minneapolis in the
state of Minnesota, with a capital stock
of one hundred thousand dollars, di-
vided vn\.o five hundred shares, at two
hundred dollars per share.
2. That under and by virtue of the
authority to him granted under chapter
37 of the General Statutes (1878) of the
state of Minnesota, and the acts amend-
atory thereto, the treasurer of the state
of Minnesota deposited on the
day of , 189.2, in said bank the
public funds of the state of Minnesota.
3. That on the day of ,
1892, the said defendant, the said bank,
became, and ever since that time has
been, and now is insolvent and unable
to pay on demand checks, drafts, and
orders drawn upon it in the due course
of business, and that on the twenty-
fourth day of June, 189^, the said de-
fendant, the said bank, closed its doors
and suspended payment.
5 E. of F. P. 44.
689
Volume 5.
6437. CORPORATIONS. 6437.
II. That the capital stock (continuing as in paragraph % of Form
No. 6440).
III. That the said defendant the said corporation has become
insolvent, and is unable to pay its debts in full, and has violated the
various provisions of the statutes and acts amendatory thereto by and
under which it was incorporated, and the acts of the legislature bind-
ing upon it. That for some years last past the said defendant has
been greatly embarrassed financially in its corporate business, and
that more than a year last past it became insolvent and was unable
to discharge its debts and liabilities in full as they became due, and
now is, and ever since that time has been insolvent and unable to
pay and discharge its debts and liabilities as the same became due.
IV. That for at least one year last past the said defendant the
said corporation has been unable to pay and discharge its notes and
other evidences of debt, and during said year has neglected to pay
and discharge its notes and evidences of debt, and is now unable to
pay and discharge the same.
V. That the said defendant the said corporation is the owner, and
has in its possession, a large quantity of real and personal property,
to wit: {Here describe the property, both real and personal, as nearly as
can be.)
VI. That the said defendant the said corporation is largely indebted
to divers persons, firms and corporations, some of which said indebt-
edness is long past due and undischarged.
VII. That the said defendant the said corporation cannot dispose
of its said property and pay said indebtedness, and is not now nor
will it be able in the future to pay and discharge the same.
VIII. That several suits for debts due have been commenced
against the said defendant, and the time for obtaining judgments
therein will expire in a short time, to wit, by the first day of June,
i&98, and that if such judgments are allowed to be obtained, and the
executions issued thereon, the property of the said defendant the
said corporation will be levied on and sold at a great sacrifice, as
plaintiff verily believes, and the judgment creditors thereby obtain a
4. That the said defendant the said virtue of the provisions of chapter 76 of
corporation was, at the time it closed the General Statutes (1878) of the state
its said doors and suspended payment of Minnesota.
as aforesaid, indebted to the state of Wherefore, plaintiff asks judgment
Minnesota in the sum of sixty-one thou- against the said defendant the said cor-
sand three hundred and thirty-one dollars poration, that it, the said New England
and fifteen cents, and to divers other Bank, be adjudged insolvent, and that
creditors large sums of money. an injunction be granted restraining it
5. That the said defendant the said from exercising corporate rights, and
corporation owned and had in its posses- from collecting debts, assets, or paying
sion money, promissory notes of great out or transferring any of its moneys
value, choses in action, and property or property, and that a receiver be ap-
worth in the neighborhood of the sum pointed to take charge of all the prop-
of one hundred thousand dollars. erties of the said corporation and to
6. That the said state of Minnesota, collect and convert the same into
through Henry W. Childs, its attorney- money, and that the plaintiff may have
general, commenced this action against such other and further relief as to the
the defendant, the said defendant cor- court may seem just and proper."
poration, in the name and on behalf of (Concluding as in Form No. 6439, infra.)
the state of Minnesota, under and by
690 Volume 5.
6438.
CORPORATIONS.
6438.
preference over the other creditors of the said defendant the said
corporation, and the other creditors thereby be greatly injured.
IX. That the said defendant the said corporation, in its present
condition of financial embarrassment and insolvency, is not now able
to and cannot continue its corporate business in a pVoper manner,
and that it is to the best interests of all the creditors and stockholders
of the said corporation that the same be dissolved and a receiver
appointed, and its property distributed among its creditors in the
manner by law in such cases made and provided.
Wherefore plaintiff demands judgment:
First. (Continuing and concluding as in Form No. 6440.)
bb. AT INSTANCE OF STOCKHOLDER.
Form No. 6438.'
(Precedent in Peter v. Parrel Foundry, etc., Co., 53 Ohio St. 534.)
In the Common Pleas Court of Lucas County, Ohio.
William Peter, Sarah E. Peter, Horace^
S. Walbridge, S. Cornell Walbridge,
Michael J. Cooney and Charles R.
Faben, Jr., plaintiffs, \ Petition.
v.
The Union Manufacturing Company
defendant.
Plaintiffs say that the defendant is a corporation duly organized and
existing under the laws of the state of Ohio; that said corporation
1. Under the petition in this case, the
court of common pleas forthwith ap-
pointed a receiver, who at once went
into possession of the property and
assets of the defendant corporation.
Complaint by Stockholder. In Swords
v. Northern Light Oil Co , 17 Abb. N.
Cas. (N. Y. Supreme Ct.) 116, the
amended complaint, among other alle-
gations, contained the following:
"Seventeenth. That the corporation
is indebted in large sums of money to
various persons to these plaintiffs un-
known, and has no means whatever of
liquidating its outstanding indebted-
ness, nor has it had the means to do so
for much more than one year last past.
That its debts have remained unsatis-
fied for many years and will continue
to remain so unsatisfied, as no means
are at the command of the corporation
to enable it ever to discharge its obli-
gations by reason of the premises the
plaintiffs charge; that the said corpora-
tion has become and is insolvent and
unable to pay its debts, and has re-
mained insolvent for at least one year
last past, and that it is no longer en-
titled to act as a corporation, but that
it is subject to be deprived of its fran-
chises and rights by the act of this
court and be dissolved.
Eighteenth. That in pursuance of
section 1786 of the Code of Civil Pro-
cedure, the said plaintiffs duly applied
to the attorney-general of the state of
New York, by submitting to him a
written statement of facts verified by
oath, reciting in substance all the mat-
ters and things alleged herein, and
showing grounds for an action under
the provisions of section 1785 of the
Code of Civil Procedure, and request-
ing the said attorney-general to com-
mence an action in the name and in
behalf of the People of the State to
dissolve said corporation. That more
than sixty days have elapsed since such
submission was made, and the attorney-
general has omitted for sixty days after
the written statement of facts, verified
by oath, was submitted to him as afore-
said, to commence an action or proceed-
ing to dissolve the said corporation, or
any action specified in said section 1785,
and these plaintiffs as stockholders as
691
Volume 5.
6438. CORPORATIONS. 6438.
was organized for manufacturing and is carrying on the business of
manufacturing and selling sewing machines, washing boards of various
kinds, churns and flour -mill machinery, and that its principal place of
business is in the city of Toledo, Lucas county, Ohio; that these plain-
tiffs are all stockholders of said defendant corporation; that the
amount of the paid up capital stock of said corporation is seven hun-
dred and twenty-four thousand and five hundred (724,500.00*) dollars
and is divided into seven thousand two hundred and forty-five (7,245)
shares of one hundred ($100.00) dollars each; that plaintiffs are the
owners of three hundred and forty-five thousand (345,000.00) dollars of
said paid up capital stock, and are the owners of three thousand four
hundred and fifty (3,450) shares thereof.
Plaintiffs further say that for no one of the three last preceding
years have the net earnings of the said defendant corporation been
sufficient to pay, in good faith, an annual dividend of six per centum
upon the paid up capital stock of the said corporation over and
above the salaries and expenses authorized by the. by-laws and regu-
lations of the said corporation.
Plaintiffs further say that the bonded debt of said defendant cor-
poration, is one hundred thousand (100,000.00) dollars; that said
defendant corporation has, in addition, an unsecured indebtedness of
about one hundred and sixty thousand (160,000.00) dollars; that the
said corporation is indebted to these plaintiffs in the sum of not less
than j//>' thousand (50,000.00) dollars in the aggregate; that a large
part of said unsecured indebtedness, to wit: the sum of not lessyfo<?
thousand (^5,000.00) dollars, is now due and unpaid and the entire bal-
ance of said unsecured indebtedness will become due within a period
of four months from this date and at least two-thirds thereof will
become due within a period of sixty (60) days from this date.
Plaintiffs further say that the said defendant corporation is wholly
unable to pay the portion of said indebtedness now past due and
that it will not be able to pay the balance of said indebtedness as
the same matures and that said corporation is insolvent; that said
corporation has a large plant situated in Toledo, Ohio, consisting of
aforesaid now have the right to be- tion, wherein and whereby it was
gin an action in their own name, such amongst other things ordered that
as is by the said sections 1785 and 1786 leave be and is hereby granted to the
provided. That thereupon, upon such plaintiffs, stockholders in the said
refusal of the attorney-general to pro- Northern Light Oil Company, to begin
ceed as aforesaid, the plaintiffs duly this action in their own name, pursuant
applied to the supreme court at especial to the provisions of section 1786 of the
term thereof, for leave to bring this ac- Code of Civil Procedure, and that they
tion in their own name against the de- be empowered to conduct and carry on
fendants, and thereupon the court duly the same with like force and effect as if
granted the plaintiffs such leave to sue the said action had been commenced by
with like force and effect as if the action the attorney-general in the name and in
had been brought by the attorney- behalf of the People of the State of New
general in the name and in the behalf York, as by reference to the said order,
of the People of the State of New York, when the same shall be produced, will
and thereupon an order to that effect more fully and at large appear, and to
was duly made and entered on September which these plaintiffs pray leave to
23, i8c%>, at a Special Term of this court refer, if need be." These allegations
held at the court-house in the city and were held to be sufficient upon de-
county of New York, entitled in this ac- murrer.
692 Volume 5.
6438. CORPORATIONS. 6438.
an interest in real estate, factories, machinery, tools and implements;
that it has been and is now engaged in its said business of manufac-
turing sewing machines, washboards of various kinds, churns and flour-
mill machinery, and selling the same in said city of Toledo and elsewhere ;
that it has branch offices in different states and a large force of work-
men engaged in said business in various capacities, that it has a large
number of unfinished machines, machinery, washboards and churns on
hand and also a large number of finished machines, machinery, wash-
boards and churns on hand ; that it has a considerable amount of material
on hand to be used in the manufacture of such machines, machinery,
washboards and churns, and in finishing said articles now unfinished,
and said corporation is unable to meet its liabilities and current
obligations.
Plaintiffs further say that by reason of the insolvent condition of
said corporation, and by further reason of the liability of suits, the
defendant corporation's property is in imminent danger of being
sacrificed and its business brought to a standstill at a great and
irreparable loss to these plaintiffs and all other creditors and stock-
holders of the defendant corporation.
Plaintiffs further say that if said business should be suddenly sus-
pended it would unavoidably result in a very great loss to all the
creditors and stockholders of the said defendant; the finished
machines, machinery, washboards and churns could not be disposed of
except at great sacrifice ; the unfinished machines, machinery, washboards
and churns would be an almost total loss, and there would also result
great loss from inability to carry out subsisting contracts for ma-
terial prepared expressly for the business of said defendant and
which would have practically no value if thrown upon the general
market.
Plaintiffs further say that a very large part of the assets of said de-
fendant corporation, to wit, about sixty thousand ($60,000. Off) dollars,
consists of amounts due or to become due for machines sold on the
installment plan, that is to say, machines sold to be paid for in
small weekly or monthly installments, the corporation retaining the
title to said machines until the purchase price is fully paid; that said
accounts could not be sold unless at a very small per centum of the
face value thereof, and all the outstanding accounts due or to become
due to said corporation are of such a character that if the business
of said corporation should be at once suspended, there would be a
very great loss on said accounts result to said corporation and all of
its creditors and stockholders, growing out of the inability to col-
lect said accounts, or the great and disproportionate expense it
would be necessary to incur in collecting the same or any part
thereof.
Plaintiffs further say that the said defendant corporation has and
is possessed of a good-will in its said business which is of a very
great value to the said defendant, its stockholders and creditors,
unless the same shall be destroyed in consequence of said defendant
being compelled to cease business, but that if said defendant should
be compelled to cease business, the said good-will would be a total
loss to said defendant corporation, its stockholders and creditors.
693 Volume 5.
6439. CORPORATIONS. 6439.
Plaintiffs further say that the said defendant corporation owns
and holds valuable rights, titles and interest in various letters patent
of the United States especially necessary and valuable in the manu-
facture of said sewing machines.
Plaintiffs further say that unless a receiver be forthwith appointed
for the defendant corporation its property will be sacrificed, its
factory will have to be immediately closed and its business immedi-
ately closed and its business be immediately suspended, to the great
and irreparable injury of these plaintiffs and all other creditors and
stockholders of the said defendant corporation.
Wherefore plaintiffs ask that a receiver for the said defendant cor-
poration may be appointed to take charge of its real and personal
property of all kinds and descriptions, and wheresoever situated,
including choses in action, with authority to continue the business of
said corporation for the time being, under the direction and subject
to the orders of this court, pending the final winding up and settle-
ment of the affairs of said corporation; that he may be authorized
by order of this court from time to time to borrow such sums of
money for the purpose aforesaid, as to this court may seem neces-
sary and proper, and issue his obligations therefor, that he may
ascertain the indebtedness of said corporation and report the same
to this court, that the said defendant corporation may be ordered to
convey or transfer all its property, both real and personal, including
choses in action and letters patent, wheresoever the same may be
situated, whether within this state or any other state or country, to
the said receiver to be appointed in this action, that the business and
affairs of said defendant corporation may be ultimately wound up,
all its property of all kinds and descriptions sold, and the proceeds
thereof equitably distributed under and in accordance with the orders
of this court, and plaintiffs pray for all such other and further relief
as they may be entitled to, whether at law or in equity.
Oliver Ellsworth, Plaintiff's Attorney.
(Verification^-
Neglect and Mismanagement.
Form No. 6 4 3 9 . 2
State of Minnesota, \ District Court.
County of Rice. \ Fifth Judicial District.
The State of Minnesota ex relatione "
Daniel Webster, Attorney-General,
plaintiff,
against
The Cannon River Manufacturers'
Association, defendant.
The State of Minnesota, plaintiff above named, by Daniel Webster,
its attorney, complains of the defendant above named, and says:*
1. Consult the title VERIFICATIONS. N. W. Rep. 621. The court held that
2. Form based on State v. Cannon the facts alleged in the above complaint
River Mfg. Assoc., (Minn. 1896) 69 were sufficient to justify a dissolution.
694 Volume 5.
6439. CORPORATIONS. 6439.
I. That the Cannon River Manufacturers' Association is a corpora-
tion duly organized and existing under and pursuant to the laws of
the state of Minnesota.
II. That by an act of the legislature of the state of Minnesota,
approved March 2, 1865, entitled {Title of act}*- the state of Minne-
sota granted unto the Cannon River Improvement Company, a corpora-
tion theretofore duly organized and existing under and pursuant to
the laws of the state of Minnesota, for the purpose of aiding the said
last named company in the construction of slackwater navigation
with the said Cannon river, in said state, and from thence by way of
Lake Elysian to the Minnesota river, near Mankato, all the swamp
lands belonging to said state, lying and being in the odd-numbered
sections, within the St. Peter land district, as the said district was
then constituted, and not otherwise appropriated, to an amount of
not to exceed three hundred thousand acres.
That the said Cannon River Improvement Company was organized
for the purpose of constructing canals, locks, dams, towpaths, and,
generally, for the purpose of constructing slackwater navigation
from the Mississippi river via the Cannon river to the lakes con-
nected therewith, thence via Lake Elysian to the Minnesota river,
near Mankato\ but that, by an act of said legislature, entitled "An
Act in relation to the Cannon River Improvement Company,"
approved February 28, 1872, the said Cannon River Improvement
Company was authorized and empowered to amend and alter its
articles of incorporation, so as to make it a purpose and object of
said corporation, in addition to the rights and purposes theretofore
enjoyed, to construct and operate a railroad, under and pursuant to
the general laws of the said state, from the Mississippi river via the
valley of the Cannon river along the route in said last named act
described, and granted and extended to the said Cannon River
Improvement Company, for the purpose of constructing the said rail-
road, the right to have, use and enjoy all and singular the moneys,
capital stock, subscriptions, property, and rights of every nature and
kind, acquired or pledged for the purpose of the construction of the
said canal and slackwater navigation and works connected there-
with, and upon substantially the same conditions, so far as the same
could be made conformable to the change of public improvement
contemplated by the said last named act. That, in pursuance of
the said last named act, the said Cannon River Improvement Company
did thereafter amend and alter its said articles of incorporation so
as to make it a purpose and object of said corporation, in addition
to the rights and purposes theretofore enjoyed by it. to construct
and operate a railroad, under title i of chapter 34 of the General
Statutes of said state, from the Mississippi river via the valley of
the Cannon river along the route aforesaid; and that the amend-
ments and alterations of the said articles were duly filed and recorded
in the office of the secretary of state of said state.
1. The title of the act referred to was on the Cannon river, from thence by
as follows: " An Act to aid the Cannon way of Lake Elysian to the Minnesota
River Improvement Company in the river, at Mankato."
construction of slackwater. navigation
695 Volume 5.
6439. CORPORATIONS. 6439.
III. That pursuant to an act of the legislature of the said state
entitled (title of act)?- approved February 27, 1875, it was provided,
among other things, that in case the said Cannon River Improvement
Company should elect to apply the grant made in the act first herein-
before named in the building of a railroad as authorized by chapter
in of the Special Laws of 1872, at least one-twelfth of said grant
should be selected pro rata, and set apart for the purpose of
developing and improving the water-powers and manufacturing
resources of the Cannon river, which said lands so selected and set
apart should never be diverted from the said last named object, and
that whenever a corporation of the proprietors of the mills of said
Cannon river should be formed for that purpose the lands thus
selected and set apart should be transferred by the said Cannon River
Improvement Company to the corporation composed of the said proprie-
tors, to be used and applied under its direction as in said last
named act provided.
IV. That pursuant to the terms of the various acts under which the
defendant became entitled to its land grant, it has selected, and the
governor of the state has conveyed to it, in the aggregate,
24,181.45 acres; and that said corporation has disposed of the same,
and received therefor the sum of forty-one thousand seven hundred and
twenty-three dollars; and that it is entitled to receive, under the terms
of its grant, an additional amount of 818.55 acres.
V. That the defendant has become entangled in much and expen-
sive litigation, involving an expenditure of over six thousand dollars
of its funds. That though receiving and disbursing large sums of
money, defendant has never kept books of account, and has none
but very crude records of such receipts and disbursements; and that
the management of its affairs has been largely in the hands and under
the control of one or two of its members. That during the latter
years of the existence of the defendant, most of its members had
ceased to own any mill property on the Cannon river, where the mills
of the defendant were situated, or to have any pecuniary interest in
the development of its water-powers; and that, previous to the com-
mencement of this action, all such members had sold and conveyed
away all their interest in the mills on said river in which they were
formerly interested; and that not one of them is now the owner of
or in any manner interested in any mill power on said stream. That
all the members of defendant corporation have ceased to have any
interest in the management of its affairs, or any concern for the best
use of its remaining funds to complete the improvements for which
they were granted, or in any other improvement of the water-powers
of the said Cannon river; and that the moneys due such corporation,
and the proceeds of a judicious sale of its remaining lands, would, if
wisely expended, largely supplement the work already done, and
greatly improve such water-powers, and benefit the present owners,
who have succeeded to the rights therein of the original proprietors,
1. The title of act referred to in the 118, Special Laws of 1870, relating to
text was as follows: "An Act to amend the Cannon River Improvement Corn-
section 2 of chapter 67 of the Special pany."
Laws of 1865, as amended by chapter
696 Volume 5.
6440. CORPORA TIONS. 6440.
members of the defendant corporation. That the amount of funds
which the defendant is likely to receive, applicable to the purpose of
its trust, and exclusive of the additional land to which it is entitled,
will depend very much on the t outcome of the litigation in which it
is engaged; but that the same will probably amount to but a few
thousand dollars.
Wherefore plaintiff asks judgment that the defendant corporation
be dissolved; its affairs wound up; that it be restrained from exer-
cising its corporate privileges, and that a receiver be appointed to
take charge of its property and effects, and apply the same to the
purpose for which such corporation was organized.
Daniel Webster, Attorney-General.
( Verification.^-
(/*) Nonpayment of Stock.
Form No. 6440.-
(Title of court and cause, and commencement as in Form No. 6434 to *.)
1. That at the several times hereinafter mentioned, the defendant
was, and still is, a domestic corporation organized on or about the
eighteenth day of August, iS85, under the laws of the state of New
York, having its principal place of business in the city of Buffalo,
state of New York.
2. That the capital stock of said company was ninety thousand
dollars, represented by nine hundred shares of the par value of one
hundred dollars each.
3. That three years and seven months have now elapsed since said
company was organized, and only about seventy-seven and one-half
per cent, of said capital stock has been paid in.
4. That said company was duly organized under chapter 40 of the
Laws of 1848, and the acts amendatory thereof, for the purpose of
carrying on the business of manufacturing of building and cut stone,
of cement and gypsum, and the purchasing and improving real estate for
residences and homesteads, to be leased and sold by said company, but that
said company has done nothing during the year last past toward
the purposes for which it was organized, and has for more than one
year last past suspended its ordinary and lawful business.
5. That said company has, in violation of the statutes, in such
cases made and provided, received and taken notes from sundry of
its stockholders, instead of money, for assessments upon its capital
stock, as and for its capital stock.
6. That said company has failed to file or make public the report
required by the act under which it is incorporated, which should
have been filed within twenty days after the first day of January, iS89.
7. That said corporation was organized for the purposes set forth
in number fourth above, but has utterly and totally failed to do or
perform any business whatever in furtherance of the purposes for
1. Consult title VERIFICATIONS. Co., 131 N. Y. 140. See also supra,
2. This complaint is copied from the note 2, p. 662.
record in People v. Buffalo Stone, etc.,
697 Volume 5.
6441. CORPORA TIONS. 6441.
which it was organized, during the year last past, or to exercise its
corporate powers during said period of time.
8. That it is for the best interests of the creditors and stockholders
that said corporation be dissolved, and < that a receiver be appointed,
and its property distributed according'to law.
Wherefore plaintiff demands judgment.
First. That the defendant corporation be dissolved, and its rights,
privileges and franchises forfeited.
Second. That a receiver of the property and effects of the corpo-
ration be appointed pursuant to the provisions of the statute, with all
the power and authority conferred by law, and subject to all the
duties and liabilities imposed upon receivers in such cases.
Third. That the defendant, its trustees, directors, managers and
other officers be restrained by injunction during the pendency of this
action, from collecting or receiving any debt or demand and from
paying out, or in any way transferring or delivering to any person
any money, stock, property or effects of the said corporation, except
by express permission of the court; and from exercising any of the
corporate rights, franchises or privileges of the corporation, except
by express permission of the court.
Fourth. That the plaintiff may have such other and further judg-
ment or relief in the premises as may seem to the court proper to
grant.
Fifth. That the plaintiff recover the costs of this action.
Chas. F. Tabor, Attorney-General,
Plaintiff's Attorney.
State of New York, ) gg
County of Erie. \
RufusM. Choate, being first duly sworn, deposes and says, that he is
a stockholder and former secretary of the above named defendant, the
Buffalo Stone and Cement Company, and is conversant with the business
of said company and with its affairs. That he has heard the fore-
going complaint read, and knows the contents thereof, and that the
same is true of his own knowledge, except as to the matters therein
stated to be alleged upon information and belief, and as to those
matters he believes it to be true.
Rufus M. Choate.
Sworn to before me this ninth day of April, iS89.
C. Louis Fritz,
Notary Public in and for Erie -County.
(/) Other Violations of Law.
aa. RELATING TO BANKS.
Form No. 6441 .
( Title of court and cause, and commencement as in Form No. 6430 to *.)
I. That the said defendant, the Commercial Bank of Pennsylvania,
1. This information is based on the facts in Com. v. Commercial Bank, 28 Pa.
St. 383. A motion to quash a writ of quo warranto was overruled.
698 Volume 5.
644 1 . CORPORA TIONS. 644 1 .
at the several times hereinafter mentioned, was and still is a corpora-
tion, duly organized and incorporated by an act of assembly of the
commonwealth of Pennsylvania, passed March 24, 1814.
II. That in and by said act of assembly it was expressly enacted
and declared to be a fundamental article of said corporation, that the
rate of discount at which loans might be made by the said corpora-
tion should not exceed one-half of one per centum for thirty days;
that in and by said act it was also expressly enacted and declared to
be a fundamental article of said corporation, that the said corpora-
tion should not deal or trade in anything but bills of exchange, gold
or silver bullion, stocks of banks incorporated by the state of Penn-
sylvania, and United States treasury notes, or goods pledged to the
said corporation for money lent and not redeemed in due time, or
goods which might be the produce of their lands.
That by an act of the assembly of the commonwealth of Penn-
sylvania, passed March 25, 1824, the charter of said bank was con-
tinued to the first Wednesday of May, i8&5.
III. That by several subsequent acts of the commonwealth of Penn-
sylvania, viz., its acts of March 2, 1831, April 26, 1844, and April 2,
1849, the said charter had been further continued from time to time
by the legislature, subject to all the provisions, restrictions and
limitations contained in the original act of incorporation.
IV. That the said bank has repeatedly violated and broken the
fundamental articles of their act of incorporation, and greatly per-
verted and abused their corporate powers in this, that for many
months past the said bank had been in the constant practice of dis-
counting promissory notes at exorbitant and usurious rates of
interest, far exceeding the rate of one-half of one per centum for
thirty days; that the said bank received, in the month of May, i85^
twenty-one hundred and fifteen dollars and fifty cents for such usurious,
unlawful and prohibited discount; in the month of June, eighteen hun-
dred and forty -five dollars and fifty cents; in July, twenty-two hundred
and thirteen dollars ; in August, seventeen hundred and twenty-seven dol-
lars andyf/Ty cents; in September, eleven hundred and sixty dollars; in
October, two thousand and forty dollars; that between May and October
the said bank received between eleven and twelve thousand dollars,
profits made exclusively from usurious discounts of promissory notes.
V. That the said bank had also for a long time past, to wit, from
the first day of May, i854, been engaged in dealing in promissory
notes contrary to the express prohibition contained in the funda-
mental articles of incorporation.
That the said bank, in committing the several unlawful acts afore-
said, have wilfully abused their corporate powers, perverted the
objects for which they were incorporated, usurped powers and func-
tions which were expressly prohibited to them in their fundamental
law, and by reason of the said abuses, usurpations and unlawful acts
have forfeited the corporate rights and franchises conferred upon
them by the several acts of assembly aforesaid.
Whereupon the said Martin D. Hardy, attorney for the said com-
monwealth, in the name and by the authority thereof, prays the con-
sideration of the court here in the premises, and that due process
699 Volume 5.
6442.
CORPORA TIONS.
6442.
may be awarded against the said Commercial Bank of Pennsylvania in
this behalf, to answer to this court by what warrant it exercises the
powers and privileges hereinabove described. {Signature of Attorney-
General and verification as in Form No, 6430.)
bb. RELATING TO INSURANCE COMPANIES.
Form No. 6442.'
{Title of court and cause, and commencement as in Form No. 6433
to *) that the defendant is an incorporated company, formed and
organized under the act of May 1, i8<5#, and the acts supplementary
thereto, and that ever since its organization it has continuously,
within this state, to wit, at the county of Champaign, etc., offended
against the laws of this state, grossly abused and misused its cor-
porate authority, franchises and privileges, and unlawfully assumed
1. This information is based on the facts
in State v. Central Ohio Mut. Relief
Assoc., 29 Ohio St. 399. In that case a
forfeiture of all the corporate fran-
chises and privileges of association was
declared, and a judgment of ouster
from its right to be a corporation
entered against the defendant.
The information in equity against a
mutual insurance company in Chicago
Mut. L. Indemnity Assoc. v. Hunt, 127
111. 258, stated facts sufficient to justify a
dissolution. The information, omitting
formal parts, alleged in substance as fol-
lows: "That the Chicago Mutual Life
Indemnity Association is a corporation
organized January 13, 1885, under an
act (title of act) approved June 18, 1883;
that said association entered upon the
exercise of its corporate franchise and
the transaction of business under its
certificate of organization on or about
January /j, 1885, and had continued
the same until the date of filing said
information, its principal office being
located in the city of Chicago. That on
or before March /, iS8?, its president
and secretary filed with the auditor of
public accounts a statement under oath
of its business for the year ending
December j/, i&6, as required by law,
showing its financial condition, assets,
liabilities, total amount of indemnity
in force, number of members, number
whose membership had terminated
during the year and cause thereof,
total receipts and sources thereof, total
expenditures and object thereof, and
the average amount paid on each cer-
tificate; that said statement was wil-
fully false and untrue, and that the
auditor so found on examination of the
books and papers of the association
and such other examination as he had
deemed necessary; that the business
of the association had been conducted
fraudulently and in wilful violation of
the provisions of said act, and that the
association had transacted business
different from that authorized by its
certificate of incorporation; that the
auditor had communicated such facts
to the attorney-general as required by
law, and that the attorney-general, in
pursuance of the duty imposed upon
him by law, applied to the court for
relief, according to the statute in such
case made and provided, and for cause
of such application further and more
particularly showed: (Here were set out
facts showing the fraudulent and illegal
business operations of the company , which
are enumerated in the reported case.) (Con-
cluding with a prayer to the effect that)
"said officers be required to show
cause why they should not be removed
from office, or the business of the asso-
ciation closed, and that if it should ap-
pear that said officers or any of them
had been guilty of fraud, or any
material irregularity or violation of
law to the injury of the association, or
of noncompliance with any of the pro-
visions of the act under which the
association was organized, the court
should decree a removal from office
of the guilty party or parties, and the
substitution of a suitable person or
persons to serve until the regular
annual meeting, or until a successor or
successors should be regularly chosen
or elected; or, if it should appear to
the court that the interests of its mem-
bers or the general public so require,
that it decree a dissolution of the asso-
ciation and a distribution of its effects."
700
Volume 5.
6443.
CORPORA TIONS.
6443.
In the Circuit Court of Jackson
County, Missouri. To the
October Term, iB91.
and usurped franchises and privileges not granted to it, and espe-
cially in the following particulars, to wit: (Here followed seven specifi-
cations, the substance of all of which, so far as the testimony renders
them material, is embodied in the eighth specifications^-
Wherefore (continuing and concluding as in Form W0. 6433).
cc. RELATING TO RAILROADS.
Form No. 6443.*
(Precedent in Ford v. Kansas City, etc., R. Co., 52 Mo. App. 444.)*
Smith J/. Ford and (names of other "
plaintiffs), plaintiffs,
against
The Kansas City and Independence
Short Line Railroad Company and
(names of other defendants), de-
fendants.
Plaintiffs state:
First. That the Kansas City and Independent Short Line Railroad
Company is a corporation organized and existing under and by virtue
of the laws of the state of Missouri; that the capital stock of said
corporation is $100,000, divided into one thousand shares of the par
value of $100 each.
Second. That at the time of the organization of said corporation,
all of the capital stock was subscribed for by parties in the state of
Missouri and elsewhere, and five per cent, of the capital stock of said
corporation was paid into the treasury of said corporation by the
stockholders, and that no other sum of money has ever been paid
into the treasury by any stockholder thereof.
Third. That S. M. Ford, one of the plaintiffs herein, subscribed for
and is the owner of fifty shares of the capital stock of said corporation,
and that D. S. Orrison, the other plaintiff herein, subscribed for and
is the owner of three shares of the capital stock of said corporation.
Fourth. That there are about fifty stockholders in said corpora-
1. The eighth specification referred to
in the text reads as follows:
" For hire and reward, it has unlaw-
fully issued to various persons, for their
use and benefit respectively, instru-
ments of writing, denominated certifi-
cates of membership, beingof the tenor
and effect of wagering policies of life
insurance, and thereby agreed and un-
dertaken to pay to each of such persons,
or his represen tatives, upon the death of
a third person named in such instru-
ment (such third person being a stranger
to such pretended contract, and even
to the parties thereto, and often in fail-
ing health, and the insured having no
insurable or other interest in the life
of such third persons), a large sum of
money, to wit, five thousand dollars,
more or less, and that, too, without the
means or power of fulfilling such pre-
tended contracts upon its part; and in
consideration of hire and reward in each
case, it has entered into a large number
of such pretended contracts with the
same person, undertaking to insure
him thereby in a vast aggregate sum,
to wit, in one instance, over one hundred
and fifty thousand dollars, against the
deaths of a large number of strangers,
to wit, in one instance, over fifty; and
it is still engaged in such unlawful and
swindling operations."
2. Missouri. Rev. Stat. (1889),
2664. See also list of statutes cited
supra, note 2, p. 658.
3. This petition contained a good cause
of action, and was upheld on the author-
ity of Thompson v. Greeley, 107 Mo.
577.
701
Volume 5.
6443. CORPORATIONS. 6443.
tion holding from one hundred shares to one share each, and that some
of the stockholders in said corporation are nonresidents of the state
of Missouri, and that quite a number of the stockholders of said cor-
poration are insolvent.
Fifth. That the money heretofore mentioned and paid into the
treasury by the stockholders has been expended, and other debts and
liabilities contracted by said corporation amounting to about the
sum of $2,000, which has been unpaid by said corporation; that said
corporation has no property or assets, and is wholly insolvent; that
Victor Bell recovered a judgment which is of record in the circuit
court of Jackson county, for the sum of 166.08, and costs; that
Kevil 6 Waples recovered a judgment against said corporation for
the sum of 76.95, which is of record in said circuit court; that after
the obtaining of said judgment, the said judgment creditors in said
respective judgments again filed a motion under the statute asking
judgment against pjaintiff, D. S. Orrison, and judgment in said two
actions was rendered against plaintiff, D. S. Orrison, for said
amounts above stated, which judgment so rendered was by
D. S. Orrison paid.
That C. S. Crysler, in the said circuit court of Jackson county,
Missouri, recovered a judgment against said corporation, which,
together with costs, amounted to the sum of 1,070; that after the
obtaining of the said judgment, said judgment creditor filed a
motion in said action under the statute asking judgment against
plaintiff, S. M. Ford, upon his unpaid stock, and a judgment upon
said motion was rendered against plaintiff, S. M. Ford, for the said sum
of 1,070. Plaintiffs further represent and show that there are
other judgments and claims remaining unpaid that have been ren-
dered against and owing by said corporation.
Sixth. That they, by reason of said judgments so rendered against
them, and such other stockholders as may be compelled to pay said
other judgments and outstanding claims, are entitled to contribution
from the remaining stockholders of said corporation that are solvent;
that no stockholder has paid into the treasury or expended any
money for said corporation other than^fz^ per cent, paid in as here-
tofore stated, and that all of the stockholders of said corporation are
liable to plaintiffs for their proper and proportionate share towards
paying said judgments.
Seventh. That said corporation was organized in April, i87,
since which time and for the last eighteen months, there has been no
meeting of the board of directors and officers of said corporation,
and that said officers and directors have failed to call in any propor-
tion of the unpaid instalments due from the stockholders upon the
capital stock due by the stockholders to the corporation, and have
failed and neglected to make any provision for the payment of the
judgments rendered against said corporation and the debts owing by
said corporation.
Eighth. That a number of the stockholders of said corporation
are nonresidents of this state, a number are insolvent, and the only
way in which a fair and equitable settlement of the debts of said
corporation can be made by the solvent stockholders thereof is by
702 Volume 5.
6444. CORPORA TIONS. 6444.
the appoinment of a receiver, with the power to collect from such
solvent stockholders their proper and proportionate share necessary
to pay the debts of said corporation and the proper costs of these
proceedings.
[Wherefore, plaintiffs pray that] said corporation may be wound up
and dissolved, and to that end that a receiver be appointed herein,
with full power and authority to take possession of the books, papers
and property of said corporation, and that such receiver, under
the order of this court, be given authority to collect the unpaid
instalments of the stockholders sufficient in amount to properly
reimburse your orators and pay such other and remaining judgments
and debts as are owing by said corporation, together with the costs
of these proceedings.
Oliver Ellsworth, Attorney for Plaintiffs.
(2) FOR USURPATION OF FRANCHISES.
Form No. 6444.'
State of Indiana, \ In the Poscy Circuit Court,
County of Posey. \ October Term, iB98.
The State of Indiana ex relatione Daniel Webster,
prosecuting attorney of the judicial circuit,
against
Henry Bailey and (names of other defendants).
Daniel Webster, prosecuting attorney within and for the
judicial circuit of the state of Indiana, comes here into the Circuit
Court of the county of Posey, state of Indiana, and now here gives
said court to understand and be informed:
1. Indiana. Homer's Stat. (1896). and ores, and for acquiring, holding,
\\"$\ et seq . See also list of statutes selling and conveying all property, real
cited supra, note 2, p. 658. and personal, necessary or convenient
Mining Corporation Michigan. In for carrying on the same; and during
Taggart v. Perkins, 73 Mich. 303, a pro- all the time aforesaid the said persons
ceeding to try the right of a corporation have usurped, and still do usurp, upon
to renew for a term of thirty years, the the said people." Concluding with
attorney-general's information, omit- prayer for process against such persons
ting the formal parts, alleged in sub- " to answer the people of the state of
stance, that the persons named "are Michigan by what warrant they claim
stockholders in a corporation, called to have, use and enjoy the liberties,
the 'Pcwabic Mining Company' purport- privileges and franchises aforesaid."
ing to be a renewed corporation, and Judgment of ouster was entered against
for the space of one month last past and the defendants under this information,
upwards, at Hancock, in the county of Railroad Corporation Ohio. In State
Houghton, in this state, have used, and v. Sherman, 22 Ohio St. 411, the pro-
still do use, without warrant, grant or ceeding was in the nature of a quo
charter, the liberties, privileges and warranto by the attorney-general, and
franchises of being a body corporate in the information charged in substance
law, fact and name, by the name of the that the defendants "are acting and
'Pewabic Mining Company' purporting assuming to act as a corporation within
to be a renewed corporation, and by the state of Ohio, without being legally
that name to plead and be impleaded, authorized so to do; that they are as-
to answer and be answered unto; and suming to exercise, and are exercising
also the liberties, privileges and fran- within said state, certain fanchises and
chises of wining, smelting and manu- authority not warranted by law; and
fttcturing copper, iron and silver minerals that for the space of one year last past
703 Volume 5.
6444.
CORPORA TIONS.
6444.
That the defendants Henry Bailey {naming the other defendants) pre-
tended to organize a corporation under the name of the Bailey Manu-
facturing Company, on the twenty- fifth day of February, \W6, and are
now assuming to act as a corporation under the organization then
made, and are now and have been for more than two years last past
usurping the franchise of being a corporation under the name afore-
said, and by that name of pleading and being impleaded, answering
and being answered, contracting and being contracted with, and of
acquiring, holding, selling and conveying, and otherwise using and
disposing of property, both real and personal, within the state of
Indiana; that said persons, pretending to act as a corporation, organ-
ized under the name aforesaid, on the first day of May, i896, in the
office of the secretary of state Qilndiana, filed false and fraudulent
articles of association, whereby the corporation was claimed to be
organized.
Wherefore, relator prays the court that the said defendants be
they have used, and still do use, with-
out any grant, warrant or charter, the
liberties, privileges and franchises fol-
lowing, to wit: That of being a body
corporate and politic in fact, law and
name, by the name of the ' Pittsburg,
ft. Wayne and Chicago Railway Com-
pany,' and by the same name to plead
and be impleaded with, answer and be
answered unto, and to have and use a
corporate seal; also that of building,
owning and opening a line of railroad
within said state, and of condemning
and appropriating private property for
the same and the use thereof; also, that
of being a common carrier of passen-
gers and freight within and across said
state, and of charging and receiving a
reward therefor; also, that of contract-
ing and being contracted with, and of
exercising all the rights, powers and
privileges conferred upon incorporated
railroad companies by an act of the
general assembly of the state of Ohio,
passed March 19, 1869, entitled 'An
Act to amend section 24 of an act to
provide for the creation and regulation
of incorporated companies in the state
of Ohio,' passed May I, 1852. All of
which liberties, privileges, franchises,
and authority, the defendants have
usurped, and do still usurp, upon the
state of Ohio, and have exercised, and
are still assuming to exercise in said
state, without being legally authorized
so to do, and without any warrant,
grant, or authority of law, to the great
damage and prejudice of the state."
A judgment ouster was entered against
the defendants as to the franchise being
a corporation of Ohio, and a judgment
in their favor as to the other franchises
and privileges which they were charged
with usurping.
Water Company Pennsylvania, In
Com. v. Lykens Water Co., no Pa. St.
391, the suggestion for a writ of quo
warranto filed by the attorney-general
against the Lykens Water Co. to show
by what warrant it claimed to exercise
the rights of a corporation, set forth in
substance the following facts:
" i. That the respondent, ever since
July soth, i8<5j>, claims, without lawful
warrant, to be a corporation in the
name of The Lykens Water Company,
with power to supply pure water to the
borough of Lykens, in the county of
Dauphin, and to provide, erect and
maintain all the necessary appliances
therefor.
2. That said respondent was not law-
fully created for the purposes afore-
said, because on the 6th day of May,
i8c?o, another corporation was formed
in the name of The Lykens Water Com-
pany, with exclusive power to furnish
water to said borough of Lykens, until
eight per cent, dividends had been made
and divided among its stockholders.
3. That the Lykens Water Company,
incorporated May 6th, i8<5b, was in full
life and being, and that another com-
pany (respondent) was incorporated in
the name of The Lykens Water Com-
pany, July zoth, iSSj, and that the older
company had not realized eight per
centum upon its capital stock." Con-
cluding with prayer to court " to award
a writ of quo warranto against The
Lykens Water Company, respondent, to
appear and show cause by what war-
rant they claim to have the franchises
and powers claimed."
704
Volume 5.
6445. CORPORATIONS. 6446.
required to show by what fight, if any, they claim to have, use and
enjoy the liberties, privileges and franchises aforesaid, and that they
be ousted from using the same.
Daniel Webster, Prosecuting Attorney
for the Eleventh Judicial Circuit.
Form No. 6445.'
County of Ingham, ss.
Daniel Webster, attorney-general of the state of Michigan, who
sues for the people of the said state in this behalf, comes here into
the Circuit Court for the county of Ingham, on the twenty-ninth day
of March, i8#<9, and for the said people gives the said court here to
understand and be informed, that the (president, directors and company
of the Lansing Company), to wit, at the city of Lansing, in the county
aforesaid, for the space of years now last past and upwards,
have used, and still do use, without any warrant, grant or charter,
the following liberties, privileges and franchises, to wit, that of being
a body politic and corporate in law, fact and name, by the name of
(the president, directors and company of the Lansing Company), and by the
same name to plead and be impleaded, to answer and be answered
unto; and also the following liberties, privileges and franchises, to
wit, that of issuing and putting into circulation as money, in and by
the name aforesaid, bank bills payable in money, and of discounting
bills of exchange and promissory notes in and by the name afore-
said; all of which said liberties, privileges and franchises the said
president, directors and company of the Lansing Company aforesaid,
during all the time aforesaid, have usurped and still do usurp upon
the said people, to their great damage and prejudice; whereupon the
said attorney-general prays the advice of the said court in the
premises, and due process of law against the president, directors
and company of the Lansing Company aforesaid, in this behalf to be
made, to answer to the said people by what warrant they claim to
have, use and enjoy the liberties, privileges and franchises aforesaid.
Daniel Webster, Attorney-General.
Supreme Court, ss.
On motion of Daniel Webster, attorney-general, leave is granted by
the supreme court to file the within information. [And the defend-
ants therein named, having appeared before the said court by their
counsel, and been heard in opposition to the motion for leave to file
the same, it is ordered that on filing the said information, a rule be
entered requiring defendant to appear and plead thereto within
/owz(ydays after service of a copy thereof and notice of such rule.]
Calvin Clark, Clerk.
AGAINST GAS COMPANY.
Form No. 6446.
(Precedent in State v. Cincinnati, Gas-Light, etc., Co., 18 Ohio St. 264.)*
(Title of court and cause as in Form No. 6433.)
1. This form is given in Green's though the replication of the state to
Pr. (1866), p. 493. several of the pleas of the defendant
2. This information was held good al- was decided to be bad on demurrer.
5 E. of F. P. 45. 705 Volume 5.
6447. CORPORATIONS. 6447.
William H. West, attorney-general of the state of Ohio, who sues
for the said state in this behalf, comes here before the judges
of the Supreme Court of the said state on the day of
December, in the year eighteen hundred and sixty-seven, at the
December term thereof, and, for the said state of Ohio, gives
the said court here to understand and be informed that the Cin-
cinnati Gas-Light and Coke Company, for the space of one year now
last past and upward, at Cincinnati, in the county of Hamil-
ton, to wit, at Columbus, in the county of Franklin aforesaid, in the
said state, have used, and still do use, without any warrant, grant or
charter, the following liberties, privileges, and franchises, to wit, that
of being a body corporate and politic in law, fact and name, by the
name of The Cincinnati Gas-Light and Coke Company, and by the
same name to plead and be impleaded unto, answer and be answered
unto; and also the following liberties, privileges and franchises, to
wit, that of having and exercising an exclusive right to open and
use the streets, lanes, alleys, commons and public grounds of the
city of Cincinnati for the introduction of pipes and other apparatus
for gas, for the purpose of conveying gas to the said city and
citizens thereof; and also the following liberties, privileges and fran-
chises, to wit, that of conveying gas through pipes and other appa-
ratus laid in the streets, lanes, alleys, commons and public grounds
of the said city of Cincinnati, and supplying the same to said city and
the citizens, and charging as and for the price thereof at the rate of
two dollars and fifty cents for every thousand cvibic feet thereof, to each
consumer of the same; all which said liberties, privileges and fran-
chises the said Cincinnati Gas-Light and Coke Company, during all the
time aforesaid, have usurped, and still do usurp, upon the state of
Ohio, to its great damage and prejudice.
Whereupon, the said attorney-general prays the advice and judg-
ment of the said court in the premises, and due process of law
against The Cincinnati Gas-Light and Coke Company aforesaid in this
behalf, to be made to answer to the state of Ohio by what warrant
they claim to have, use, and enjoy the liberties, privileges and fran-
chises aforesaid.
W. H. West, Attorney-General.
AGAINST RAILROAD COMPANY CLAIMING CANAL LANDS.
Form No. 6447.
(Precedent in Ohio v. Pittsburg, etc., R. Co., 53 Ohio St. 190.)'
(Title of court and cause as in Form No. 6433.)
Now comes John K. Richards, attorney-general of the state of Ohio,
by direction of the general assembly of the state of Ohio, and gives
the court to understand and be informed:
i. That the defendant, the Pittsburg, Cincinnati, Chicago and St.
Louis Railway Company, is a consolidated railroad company, being a
corporation engaged in operating a railroad in the state of Ohio and
1. The court held in this case that quo warranto would lie, and rendered
judgment for the relator.
706 Volume 5.
6447. CORPORATIONS. 6447.
in other states, formed on the 28th day of August, i890, by the con-
solidation under and in accordance with the laws of Ohio, of the Pitts-
burg, Cincinnati and St. Louis Railway Company, hereinafter referred to,
a railroad corporation then and prior thereto owning and operating a
railroad within the state of Ohio and other states, and the Chicago,
St. Louis and Pittsburg Railroad Company, and the Cincinnati and Rich-
mond Railroad Company, and the Jeffersonville, Madison and Indian-
apolis Railroad Company.
2. That, in the year 1 869, the said Pittsburg, Cincinnati and St.
Louis Railway Company, one of the constituent companies of the
defendant corporation, leased perpetually the line of railroad of the
Little Miami Railroad Company, a corporation formed under the laws of
Ohio, and then owning and operating a line of railroad from Cincin-
nati, Ohio, to Columbus, Ohio, together with all the rights, privileges
and contracts belonging to said Little Miami Railroad 'Company, and at
that time entered into the enjoyment thereof under said lease, and so
continued up to the time of its merger by consolidation into the
defendant corporation, when the defendant entered upon the enjoy-
ment thereof and still continues so to enjoy the same.
3. That, on and prior to the 24th day of March, i863, the state of
Ohio was the owner in fee and in full use and possession of that part
of the Miami and Erie canal extending from the east side of Broad-
way street, in the city of Cincinnati, to the Ohio river, including the
width thereof, as then owned and held by the state, the same being a
part of the canal system and public works of the state of Ohio.
4. That, on said 24th day of March, iS63, the general assembly of
the state of Ohio passed the following act: (5o O. L., 44.) (Here
was set out the act^-
5. That, in accordance with the provisions of section three of the
act last mentioned, the council of the city of Cincinnati, by a vote of
not less than two-thirds of the whole number of members thereof,
decided to use said part of said canal as authorized in the act, and
made known its decision to the governor of -the state, and there-
upon, on the 28th day of April, 1868, David Tod, then governor of
Ohio, on behalf of the state, executed and delivered to the city of
Cincinnati the following grant of the part of the canal described in
the act, for the uses and purposes and upon the terms and conditions
specified in said act: {Here was set out the grant '.) 2
6. That the city of Cincinnati duly accepted said grant, on the 19th
day of February, 1864, for the purpose of entering upon, improving
and occupying the part of the canal described in said act as a public
highway and for sewerage purposes, passed the following ordinance:
{Here was set out the ordinance^
1. The title of the act referred to in the city of Cincinnati to a part of the Miami
text was as follows: "An Act to author- and Erie canal." The deed is set out in
ize the city of Cincinnati to enter upon full in the reported case. It was signed
and occupy a part of the Miami and and executed by the governor and sec-
Erie canal as a public highway and retary of the state, with the great seal
general sewerage purposes." The act of the state affixed.
is set out in full in the reported case. 3. The title of the ordinance referred to
2. The grant referred to in the text was in the text was as follows: "Ordinance
a " deed from the state of Ohio to the No. 321,10 open, widen and establish
707 Volume 5.
6447. CORPORA TIONS. 6447.
7. That the city of Cincinnati, having, in accordance with the act of
March 24, i863, submitted to the Board of Public Works of the State
of Ohio its plan for the improvement of the part of the canal
described in said act, and the same having been duly approved by
said board, proceeded to and did enter upon that part of the Miami
and Erie canal extending from the east side of Broadway \.Q the Ohio
river, under the said grant from the state, and proceeded to and did
improve and occupy the same, in pursuance of the ordinance quoted,
as a public highway and for sewerage purposes, in the manner and to
the extent hereinafter described and not otherwise: Land lyingalong
and adjacent to the canal was condemned by the city of Cincinnati
sufficient to open Eggleston avenue the full width of ninety feet from
the Ohio river to Broadway. Along Eggleston avenue and within the
limits of the canal, the city, between the years 1 869 and 1 873 or i&74,
constructed a large sewer from Broadway to the Ohio river, and over
this sewer a covered raceway to conduct the water leased by the
state for power purposes prior to the grant aforesaid. About this
time the city filled the gullies and ditches of the canal and partially
graded Eggleston avenue from fifth street to Broadway.
For the improvement of Eggleston avenue the city expended in all
the following sums: (Here were enumerated the expenditures. ,) 1
The city has never permanently graded and paved said street for
use as a public highway as are other improved streets of the city.
Excepting the construction of the sewer and raceway aforesaid, no
work whatever in the way of improving Eggleston avenue, between
Pearl street and the Ohio river, has ever been done by the city.
8. That, on November 16, i867, the city of Cincinnati, by resolution
of its common council, granted to the said Little Miami Railroad Com-
pany, a corporation under the laws of Ohio, then owning and operating
a line of railroad from Cincinnati, Ohio, to Columbus, Ohio, the right to
lay down and use a railroad track on Eggleston avenue, extending
from Pearl street north to Broadway, the said Little Miami Railroad
Company being the lessor of the Pittsburgh, Cincinnati and St. Louis
Railway Company, one of the constituent companies of the defendant
consolidated corporation. In the year i87#, the said Pittsburgh,
Cincinnati and St. Louis Railway Company, then the lessee of the Little
Miami Railroad Company, built said railroad track along the said
portion of Eggleston avenue, and it and the defendant company have
ever since continued to use the same for railroad purposes, and have
constructed for many property owners on and near Eggleston avenue
connecting tracks leading from said line on Eggleston avenue into the
private property of said persons, for use in the conduct of their busi-
ness, and large outlays have been made, both by said railroad com-
panies and by said persons, upon the faith of said grant by said city.
Since the construction and use of said railroad track along Eggleston
avenue, a large number of factories and warehouses have been located
and built on and near the avenue because of the existence of the
track, and the railroad facilities thereby afforded.
Eggleston avenue the full width of 1. The expenditures referred to in the
ninety (90) feet from the Ohio river to text were itemized, and amounted in all
Broadway." The ordinance is set out to $753,609.
in full in the reported case.
708 Volume 5.
6447. CORPORATIONS. 6447.
9. That, prior to the building of the tracks mentioned in the last
paragraph, namely, on the first day of December, i87.7, the city of
Cincinnati passed the following ordinance, vacating Eggleston avenue
and Kilgour street, between Front and Pearl streets (said Kilgour
street not being involved in this controversy), and granting the same
to the Newport and Cincinnati Bridge Company, and the Little Miami
Railroad Company and its lessees, for railroad, bridge and depot pur-
poses, subject, however, to the rights of the state of Ohio, and upon
certain conditions and under certain restrictions, which are set out in
the ordinance: {Here was set out the ordinance.^-
10. That, immediately thereafter, the Newport and Cincinnati
Bridge Company and the Little Miami Railroad Company and its
lessees, filed with the city clerk of Cincinnati a written acceptance of
the said ordinance vacating Eggleston avenue and Kilgour street
between Front and Pearl streets, and, thereupon, the said companies
entered into possession of that part of Eggleston avenue lying
between Front and Pearl streets in the city of Cincinnati, and have
ever since occupied and used the same for railroad, bridge and depot
purposes, the part of said ground occupied and used by the Little
Miami Railroad Company and its lessees and the nature of the occupa-
tion and use being described in the next succeeding paragraph.
11. Included in the part of Eggleston avenue between Front and
Pearl streets vacated as aforesaid by the city of Cincinnati, was
the following described real estate, which was formerly a part of
the Miami and Erie canal, the use of which was granted to the city
of Cincinnati for a public highway and for sewerage purposes by the
act of March 24, i863, as already set forth: (Here follows in detail a
description of the property. )
12. That that part of Eggleston avenue between Front street and
the Ohio river, including a part of the Miami and Erie canal, extend-
ing from Front street to the Ohio river, the use of which was granted
by the state of Ohio by the act of March 24, i&63, to the city of Cin-
cinnati for a public highway and for sewerage purposes, some years
ago was taken possession of, and since then and for a long time, has
been and is now occupied wholly by the yard tracks, side tracks and
switches of the Pittsburgh, Cincinnati and St. Louis Railway Company
and the defendant corporation, and has for a long time been and now is
used exclusively by said railroad companies for railroad purposes,
the city of Cincinnati having abandoned the use of said street as a
public highway, although the large sewer conducted down Eggleston
avenue still passes under this abandoned portion to the Ohio river,
and, by reason of such use and occupation, it has become and is
impossible to use said premises as and for a public highway.
13. The plaintiff avers and charges, that, subject to the rights,
privileges and easements therein, which were granted to the city of
Cincinnati by the state, under the act of March %4> i8&J, excepting,
however, such of the rights, privileges and easements thus granted
as, by reason of the facts herein above stated, have since then been
1. The title of the ordinance referred to and Kilgour street, between Front and
in the text was as follows : "Ordinance Pearl streets." The ordinance is set out
No. 629, to vacate Eggleston avenue in full in the reported case.
709 Volume 5.
6447. CORPORA TIONS. 6447.
released, abandoned or forfeited by said city, the state of Ohio ha?
been, since the said 24th day of March, i863, and now is, the owner in
fee and entitled to the full use and possession of that part of the
Miami and Erie canal extending from the east side of Broadway in
the city of Cincinnati to the Ohio river, including the width thereof,
as owned and held by the state on said date.
14. Plaintiff further avers and charges, that the city of Cincinnati
had no power or authority to grant to the Little Miami Railroad
Company or its lessees, the right to lay and use a railroad track or
tracks in Eggleston avenue as aforesaid, on canal property, belonging
to the state, which the state had permitted the city of Cincinnati to
enter upon, improve and occupy only as a public highway and for
sewerage purposes; and that the construction and use of said
railroad tracks by the Pittsburgh, Cincinnati and St. Louis Railroad
Company and the defendant corporation as aforesaid, was and is
inconsistent with the use granted to the city of Cincinnati, and in
violation of the rights of the state and in contravention of law.
15. Plaintiff further avers and charges, that the vacation of Eggle-
ston avenue between Front and Pearl streets as aforesaid, was an
abandonment by said city of the same, and of the canal property
of the state embraced therein for use as a public highway, and that
the construction by the Little Miami Railroad Company and its lessee
and the defendant of a permanent passenger depot and a permanent
freight depot as aforesaid, on land belonging to the state already
described, was and is an authorized and wrongful occupation and
use of the property of the state which was granted to the city of
Cincinnati for use only as a public highway and for sewerage pur-
poses; and that such occupation and use of said canal land by the
defendant was and is inconsistent with the use granted the city of
Cincinnati, and was and is repugnant to and subversive of the rights
of the state and of the public in said land, and in contravention of
law.
1 6. Plaintiff further avers and charges, that the occupation and
use of Eggleston avenue and the canal property of the state within
its limits between Front street and the Ohio river, by the yard tracks,
side tracks and switches of the defendant corporation, was and is an
abandonment of the same by the city of Cincinnati as a public high-
way, and was and is inconsistent with the use granted and permitted
to the city of Cincinnati, and was and is without authority and in
contravention of law, and repugnant to and subversive of the rights
of the public and the state in said land.
17. The plaintiff further avers and charges, that the defendant
railway company, in locating, constructing and operating its railway
tracks and switches as aforesaid in and along Eggleston avenue and
the part of the Miami and Erie canal embraced therein between
Broadway and Pearl streets ; and in construction, occupying and
using its permanent passenger depot and permanent freight depot as
aforesaid, on the part of the Miami and Erie canal before described,
embraced within the limits of Eggleston avenue between Pearl and
Front streets, as originally established; and in locating, constructing
and operating its yard tracks, side tracks and switches as aforesaid,
710 Volume 5.
6448. CORPORA TIONS. 6448.
on, across and over that part of the Miami and Erie canal embraced
within the limits of Eggleston avenue between Front street and the
Ohio river, as originally established, is now and has been for some
time past, usurping and unlawfully exercising and using rights,
privileges and franchises, in contravention of law.
Prayer The plaintiff prays the advice of the courtln the premises,
and that the defendant railroad company be compelled to answer by
what warrant it claims to have, use and enjoy the rights, privileges
and franchises aforesaid; and that it be ousted from exercising the
same, and be compelled to remove its tracks and switches from the
part of the Miami and Erie canal embraced within the limits of Eggle-
ston avenue between Broadway and Pearl streets ; and be compelled
to remove its passenger depot and freight depot and railroad tracks
from the part of the Miami and Erie canal, before described,
embraced within the limits of Eggleston avenue between Pearl and
Front streets as originally established; and that it be compelled to
remove its side tracks, yard tracks and switches from that part of
the Miami and Erie canal embraced within the limits of Eggleston
avenue between Front street and the Ohio river as originally estab-
lished ; and the plaintiff further prays that such other relief be granted
in the premises as to the court may seem just and proper.
John K. Richards, Attorney-General.
Joseph B. Foraker,
David K. Watson,
Of Counsel.
(3) CROSS-PETITION OF CREDITOR OF INSOLVENT CORPORATION.
Form No. 6448.
(Precedent in Peter v. Parrel Foundry, etc., Co., 53 Ohio St. 534. )'
[The State of Ohio, )
Lucas County, ss. j
William Peter, Sarah E. Peter, Horace S.
Walbridge, S. Cornell Walbridge, Michael
J. Cooney and Charles R. Faben, Jr.,
' f Foundry and Machine
against
The Union Manufacturing Company,
defendant.
Answer and Cross-peti-
tion of the Farrel
Company.
Now comes the defendant and cross-petitioner, the Farrel Foundry
and Machine Company, by its attorney, Jeremiah Mason, and for its
1. Cross-petition is the proper remedy An answer in the nature of a cross-peti-
by a creditor of a corporation which is tion which discloses the assets of the
insolvent and its assets in the hands of concern in addition to those disclosed
a receiver who seeks the enforcement by the petition, or shows a title in the
of the statutory liability of stockholders, party filing the cross-petition to a share
notwithstanding said creditor has not in the distribution of the assets, was
reduced his claim to judgment. Peter held in this case to be good as against a
v. Farrel Foundry, etc., Co., 53 Ohio demurrer for failure to disclose a cause
St. 534. of action "in favor of the defendant
711 Volume 5.
6448. CORPORA TIONS. 6448.
answer and cross-petition for the petition of the plaintiff herein,
says:] 1
i. For first cause of action it says that it is a corporation, organized
under the laws of the state of Connecticut, for the manufacture and
sale of chilled rolls and other machinery, located and having its
principal place of business in the town of Ansonia, in said state.
Defendant, the Union Manufacturing Company, is a corporation,
organized under the laws of the state of Ohio for the manufacture
and sale of iron and wooden ware; and was until the date of the
commencement of this action engaged in carrying on the business
for which it was incorporated, as set forth in plaintiff's petition.
During the months of October, November and December, i889, this
cross-petitioner, at the request of said defendant, shipped from An-
sonia to Toledo, and delivered to defendant, fifty-six chilled rolls,
grooved. In consideration of such sale and delivery, said defendant
at said dates promised to pay this cross-petitioner sixteen dollars for
each of said rolls, in the aggregate eight hundred and ninety-six dollars,
forthwith thereafter. Said defendant has not paid any part of said
moneys, although requested by this cross-petitioner so to do.
Defendant is entitled to a credit of two and twenty-three one-hun-
dredths dollars for an overcharge of freight upon a shipment of eight
of said rolls made on the 28th of October, i&89, and by said defendant
paid to the carrier on the 9th day of November, i889. It is entitled
to no other credit nor offset.
The respective dates at which said rolls were sold, shipped and
delivered were as follows: (Here was set out an itemized statement?)
Said rolls were purchased by said defendant, to be by it used for
the manufacture of the articles in which it dealt, and were by it applied
to such purpose.
Wherefore said defendant is indebted to this cross-petitioner in
the sum of eight hundred and ninety-three and seventy-seven one hundredths
dollars, with interest thereon from the fourteenth day of December,
iS89.
This cross-petitioner has never owned any of the stock of said
defendant.
When said goods were by this cross-petitioner sold and delivered
as aforesaid, said defendant was by cross-petitioner believed to be in
good credit and perfectly solvent. But in fact said defendant then
was and long theretofore had been and still is insolvent. It then
owed, and still owes, more money than all of its assets were or are
of value sufficient to pay. Nearly the entire indebtedness [ajforesaid
was by defendant then owed, and is still owed to its stockholders.
The amount by it owed to this cross-petitioner and other persons
not stockholders was and is, in the aggregate, small. Said amount
and against the plaintiff between whom to him with a cause of action against
the several judgments might be had in all the stockholders of the concern, up-
an action." Peter v. Farrel Foundry, on their statutory liability as such
etc. Co., 53 Ohio St. 534. stockholders. Peter v. Farrel Foundry,
Defendant may join in his cross-petition etc., Co., 53 Ohio St. 534.
a cause of action for money payable to 1. The words within [] do not appear
the insolvent corporation by a stock- in the reported case, but have been
holder thereof on account of stock issued added to complete the form.
712 Volume 5.
644-8. CORPORATIONS. 6448.
was and is much less than the value of the tangible assets then owned
by said defendant corporation, now in the possession of Alvin Peter
as its receiver in this action.
On the twenty-second day of January, \WO, the board of directors
of said defendant was composed of seven of its stockholders, to wit:
(naming the stockholders). No change has since been made in the
composition of said board.
Said defendant corporation was organized in i87#, with an author-
ized capital stock of fifty thousand dollars. Said authorized capital
stock has been by the stockholders of defendant successively in-
creased: April 12, i87<?, to one hundred thousand dollars; September
19, i&Sl, to three hundred thousand dollars; and July 80, 1886, to one
million dollars, all of said stock being divided into shares of one hun-
dred [dollars] each. Of said stock at least seven hundred and twenty-
four thousand five hundred dollars have been by said corporation
issued to its stockholders. A very small portion thereof is fully paid
up stock. On the contrary, nearly the entire amount of said stock
has been by defendant issued to its shareholders in exchange for
moneys by said respective stockholders paid to defendant therefor,
ranging respectively from twenty to seventy-five cents for each dollar
of the nominal amount of said respective shares so issued, and for
moneys by said respective stockholders paid to said defendant cor-
poration much less in amount than the amount of the respective
shares issued to them in consideration therefor.
Plaintiffs own jointly no stock of said defendant corporation.
Plaintiffs individually own stock of the aggregate amount in their
petition stated. It is not true that they individually own any large
amount of paid up stock. Nearly the entire amount of stock by said
individual plaintiffs held was by defendant issued to them respectively
paid to defendant therefor, much less in amount than the amount of
the respective shares so issued.
Plaintiff, Sarah E. Peter, is a relative of plaintiff, William Peter,
and holds a certain amount of the last aforesaid described stock by
said defendant corporation, issued to said William Peter, which stock
was by him thereafter transferred to her without consideration, and
is by her held in trust for his benefit.
Said defendant corporation, in the respective months of April and
August, iS83, executed two trust deeds in the nature of mortgages,
to plaintiff, Horace S. Walbridge, as trustee, conveying to him the
real estate upon which the factories of said defendant are located, to
wit : (Here was set out a description of the property, and the substantial
effect of the trust deeds, which were to secure the payment of certain bonds. )
Said bonds were for the most part issued to stockholders and
directors of said defendant corporation for seventy-five cents by them
paid to said defendant for each dollar by said bonds promised to be
paid, and for sums much less than the respective amounts by said
bonds purporting to be due. Interest has been paid by said defend-
ant to the first day of October, i8<?9, upon the full amount to that
date purporting to be due upon the principal indebtedness described
in said bonds, and in excess of the interest legally payable upon the
moneys paid by the parties to whom said bonds were respectively
713 Volume 5.
6448. CORPORATIONS. 6448.
issued, and by said defendant received therefor. Said bonds are
still in great measure held and owned by the parties to whom they
were originally issued. Said trust deeds were duly recorded, and
the indebtedness evidenced by said bonds is the bonded debt of said
defendant mentioned in plaintiff's petition.
The unsecured debt owned by said defendant as aforesaid is at
least one hundred and sixty thousand dollars. Of this amount James
Secor, of Toledo, aforesaid, holds two thousand dollars, with interest
from July 3, iS89, at eight percent, per annum, evidenced by the
promissory note of said corporation for that amount payable to his
order.
Said defendant corporation has been at no time indebted to plain-
tiffs in any amount jointly. It was at the date of the commence-
ment of this action, and is still, indebted to plaintiffs, William Peter
and Horace S. Walbridge, respectively, in amounts which aggregate
at least fifty thousand dollars.
This cross-petitioner has no knowledge of the property, stock-
holders or liabilities of said defendant which will enable cross-
petitioner to make its statements relative thereto more specific than
is herein set forth. But plaintiffs, comprising the majority of the
board of directors of said defendant, and owning more than one-third
of the stock by said corporation issued, were at the date of the com-
mencement of this action and have at all times since been able to
inform this court of the specific property, real and personal, both
legal and equitable, of said defendant, and of all the books, vouchers
and securities relating thereto, as well as to give a full, just and true
account of the capital stock of defendant, the names and residences
of the stockholders, the number of shares belonging to each, the
amount paid in upon such shares respectively, and the amount still
due thereon, and plaintiffs were and have been able to give to this
court a specific statement of the aforesaid incumbrance upon the
property of said defendant, and of each of its existing liabilities,
specifying the name and residence of each creditor, and nature [of]
each debt, and the true consideration received by the defendant
therefor. Plaintiffs were at the date of the commencement of this
action and at all times since have been able to perform their obliga-
tions to apply to this court for a dissolution of said defendant cor-
poration and to make all the parties and prosecute every measure
required for the winding up of the affairs of said defendant, and the
disposal and distribution of its assets by chapter five of division seven
of the first title of the Revised Statutes of Ohio. Plaintiffs have
failed to request such dissolution, and furnish the court said infor-
mation, and make any creditor or stockholder of defendant party to
this proceeding other than plaintiffs themselves, and have procured
the order of this court that said defendant convey its entire property,
including choses in action, to Alvin Peter as its receiver, and have in
behalf of said corporation placed Alvin Peter as such receiver in
possession and control of the entire assets of said corporation, and
have in every respect instituted and prosecuted this action with
intent thereby to delay and hinder and defraud this cross-petitioner
and every other creditor of said defendant other than plaintiffs, in
714 Volume 5.
6448. CORPORA TIONS. 6448.
the collection of their respective indebtedness due from said defend-
ant by appropriate process of law, and with intent, in view of the
insolvency of the defendant, to prefer plaintiffs as creditors of said
defendant in the disposal and distribution of the assets of said
defendant, and the proceeds thereof by them proposed to be made
in this action.
Said Alvin Peter, receiver, is the son of plaintiff, William Peter,
who is the largest individual creditor and stockholder of said
defendant, and since the date of the commencement of this action,
said Alvin Peter has been in the possession of the entire property of
said defendant, and has claimed the right to control its entire choses
in action, asserting such possession and claim as being rightfully
made as receiver by virtue of the order of the court in this action.
And since the date of the commencement of this action said defend-
ant has transacted no business, and has had no property not in the
possession and control of the said Alvin Peter as receiver, and has
neither money, credit nor materials with which to transact any busi-
ness in the future.
The facts relative to the expediency of selling the entire assets
and property of said defendant, other than the unpaid amounts due
from its stockholders upon their capital stock, but including in said
sale the good-will of its business, as an establishment in active
operation, are as in plaintiff's petition set forth. But said sale
should be made forthwith. The value of the good-will aforesaid has
deteriorated, and must continue to deteriorate, if the business for-
merly carried on by said defendant corporation shall long continue
to be prosecuted by this court through the intervention of any
receiver or trustee.
2. For second cause of action this cross-petitioner repeats the
statements of its first cause of action, as though the same were here
again set forth, and says further, that the entire indebtedness of said
defendant corporation to this cross-petitioner and all its other
creditors exceeds the value of its entire assets, including therein the
amount of the unpaid moneys due from its stockholders upon their
stock aforesaid from said stockholders collectible.
3. For third cause of action this cross-petitioner repeats the state-
ments of its first and second causes of action, as though the same
were here again set forth, and says further, that in order to fully
pay the indebtedness due to this cross-petitioner and all other
creditors of said defendant corporation, it will be necessary that
each of its stockholders contribute a further amount in proportion
to the amount of the stock by him or her owned or held, but not
exceeding the amount of said stock.
Wherefore this cross-petitioner, in behalf of itself and all other
creditors of said corporation, prays that the court ascertain the
entire indebtedness of said defendant corporation, the respective
parties to whom the same is due, the respective amounts thereof due
to each party respectively, and the respective consideration received
by said defendant corporation therefor; and that each said respective
creditor, by appropriate service of process or publication of notice,
be made party to this action and proceeding; that the court ascer-
715 Volume 5.
6448. CORPORA TIONS. 6448.
tain the names and residences of the past and present stockholders
of said defendant, the number of shares issued or belonging to each,
the amount paid to said defendant corporation for each said share,
respectively, and the amount still due thereon; and that each said
stockholder, by appropriate service of process or publication of
notice, be made party to this action and proceeding; that the court
ascertain the total amount of the assets and choses in action of said
defendant now in the possession and control of Alvin Peter as receiver;
and order all the same other than said moneys unpaid by said stock-
holders upon their capital stock to be sold as an entirety, including
the good-will of defendant's former business; or in such other man-
ner as shall insure the best price for said assets and good-will; that
the court order that each stockholder liable for said unpaid amounts
due upon his capital stock pay the amount so due to such receiver
or officer as the court shall direct; and in default thereof that exe-
cution shall issue therefor; that the court ascertain the further
amount due from each stockholder of defendant necessary for the
payment to this cross-petitioner and every other creditor of defend-
ant of the full amount of the indebtedness from defendant due,
including the costs and expenses of this action and proceeding, with
the reasonable counsel fees of the attorneys of this cross-petitioner
and of such other creditors of defendant as shall in good faith
endeavor to procure an equitable distribution of its assets and the
moneys due from its stockholders for the benefit of all of its
creditors; but not exceeding the amount of the stock by each
respective stockholder owned or held; that each said stockholder be
ordered to pay the further amount due from him or her as aforesaid
to such receiver or other officer as the court shall appoint; and in
default thereof that execution issue therefor; that if, in consequence
of nonresidence or insolvency the amount due from any particular
stockholder cannot be collected, then that each solvent stockholder
within the jurisdiction of the court be ordered to pay as aforesaid
all unpaid moneys due upon his stock and such further moneys, not
exceeding the amount of his stock, as shall be necessary to pay the
costs, expenses and counsel fees aforesaid and all creditors of
defendant, with right thereafter to enforce contribution from any
other stockholder in case as between said stockholders the party
making such payment has paid more than his appropriate share; that
all the moneys realized and collected as aforesaid be distributed
first to the payment of the costs, expenses and counsel fees aforesaid;
and next to the payment of the entire indebtedness of said defend-
ant corporation; giving the preference, if necessary, to such cred-
itors of defendant as shall in good faith co-operate with this
cross-petitioner in its efforts to secure an equitable distribution of
the moneys due from said defendant and its stockholders among all
the creditors of defendant; and shall with this cross-petitioner
become responsible for the costs, expenses and counsel fees afore-
said.
This cross-petition, in behalf of itself and all other creditors of said
defendant, prays that this court grant to it and them all such other
and further relief as it and they may legally and equitably claim.
716 Volume 5.
6449. CORPORA TIONS. 6449.
But should this court refuse to permit this cross-petitioner to
intervene in behalf of any other creditor of said defendant than
itself, and should refuse to this cross-petitioner the relief herein
before prayed, then in such event this cross-petitioner prays that the
court render judgment in its favor, that it recover from the defendant,
the Union Manufacturing Company, eight hundred and ninety-three and
seventy-seven one hundredths dollars, with interest thereon from the
fourteenth day of December, i&5?P; that execution issue therefor; that
the order directing said defendant to convey its property to Alvin
Peter, receiver, be rescinded and held for naught, and that this cross-
petitioner have leave to cause said execution to be levied upon all
property of said defendant now in the possession of Alvin Peter as
such receiver.
[The Farrel Foundry and Machine Company,
By Thomas Heller. President.] 1
e. Answer or Plea. 2
(1) DENYING ABUSE OR MISUSE OF FRANCHISE.
Form No. 6449.
(Precedent in State v. Greenville, Bldg., etc., Assoc., 29 Ohio St. 92.)
[(Title of court and cause as in Form No. 6448.) And now comes
the defendant, The Greenville Building and Savings Association, by
Jeremiah Mason, its attorney, and for answer to the petition of the
State of Ohio on the relation of John Little, attorney-general, and
says:] 1
1. That it is not true that it has unlawfully exceeded the
powers and franchises conferred on it by law, nor is it true that it
has assumed or claims any right or privileges not so conferred.
2. That it is not true that it permits any of its members to hold
more than twenty (20) shares of its stock, nor that it claims any right
so to do.
3. That it is not true that it has exercised, or that it claims to
exercise, banking privileges, and it says that the loans made by it, and
the bonds, etc., purchased, have been merely temporary investments
of surplus money, and that it has long since ceased to make any
such loans, purchases or discounts, or any such investments.
4. That it is not true that said defendant corporation has in the
past, or does now, refuse or decline to loan its funds to its members;
but, on the contrary, says that it is now and always has been ready to
loan to its members, in accordance with the laws of the land and
the rules and regulations adopted for its government by the mem-
bers of said association.
1. The words in [ ] do not appear in pleas, generally, consult the titles
the reported case, but have been added ANSWERS IN CODE PLEADING, vol. i, p.
to complete the form. 799: ANSWERS IN EQUITY, vol. i, p. 854;
2. For formal parts of answers and PLEAS.
717 Volume 5.
6449.
CORPORATIONS.
6449.
Wherefore, defendant prays judgment; that said information be
dismissed, and that it go hence, etc.
\Jeremiah Mason, Attorney for the Defendant.] 1
[( Verification^ *
1. The words in [ ] do not appear
in the reported case, but have been
added to complete the form. Consult
the title VERIFICATIONS.
Another Precedent Pennsylvania.
In Hestonville, etc., R. Co. v. Phila-
delphia, 89 Pa. St. 210, the answer of
the railroad company to a bill seeking
a forfeiture of its franchises, omitting
the formal parts, was as follows:
" I. That they were created by an
act of April 6th, 1859, P. L. 389, with
the route therein described, with the
power to lay out and construct a rail-
way. By a supplement to said act,
passed March 8th, 1860, P. L. 123, they
were expressly authorized to lay out
and construct their railway tracks,
from the bridge at Fairmount \.o Callow-
hill street, and along Callowhill street
to Delaware avenue, and to occupy such
other street or streets as may be neces-
sary to reach Twenty-first or Twentieth
and Callowhill streets from said bridge.
2. That under these acts there was
constructed a track from the bridge at
Fairmount westwardly to Hestonvillc.
3. That by an act passed April I3th,
1858, P. L. 257, there was created the
Fairmount Passenger Railway Company \
with power to construct a passenger
railway from the south side of Fair-
mount to Callowhill street; thence east
on Callowhill to Twenty-third; thence
south to Vine; thence east to Second;
thence south to Walnut or Dock; thence
west to Third; thence north to Race;
thence west to Twenty-second; thence
north to Callowhill street, with a double
track on Callowhill street to Fairmotint.
Section 7 provided: 'That before the
said company should use and occupy
the said street the consent of the
councils of the city of Philadelphia
shall be first obtained.' That this con-
sent was given.
4. That by the Act of April i6th,
1858, P. L. 320, there was created the
Fairmount and Arch Street City Passenger
Railway Company, with power to con-
struct a passenger railway "commenc-
ing at Tenth and Arch and continuing
westwardly along the same, with a
double track to Twentieth and Twenty-
first streets, respectively, with single
track to Callowhill street, and thence
westwardly with double track to
bridge." Section 7 provided: "That
before the said company shall use and
occupy the said streets, the consent of
the councils shall be first obtained."
On May jth, i8j (Ordinances of 1858,
177), the councils disapproved of the act
and refused consent. By a supplement
to the aforesaid act, passed March
24th, 1859, P- L. 234, it was enacted that
said company should have full author-
ity to construct and lay a passenger
railway on the route hereinbefore
stated. Section 3 provided, that " after
the special consent of the councils,
said company may, in lieu of two
tracks on that part of Callowhill street
which is between Hamilton and Twenty-
second, construct one of their tracks
on Twenty-second from Callowhill to
Hamilton, and thence west on Hamil-
ton street to Callowhill street. "
That consent was given by an or-
dinance passed April 23d, 1859 (Ordi-
nances of 1859, 198). In accordance
with the authority of said acts, railway
tracks were laid on Twenty- second
street from Callowhill to Hamilton and
thence west on Hamilton street to Cal-
lowhill street.
5. Callowhill street, from the bridge
at Fairmount, is between curbs twenty-
nine feet in width, and the existence of
more than a double track at that point
would sacrifice the other uses of the
highway. If, therefore, the defend-
ants exercised their rights as a sepa-
rate corporation to lay a double track
on Callowhill street between these
points, and the Fairmount Passenger
Railway Company sought to exercise
theirs, and the Fairmount and Arch
Street City Passenger Railway Company
sought to exercise theirs, the whole
width of the street would be occu-
pied without space between each set
of tracks.
6. Such an exercise of separate cor-
porate discretion and right would be
impossible of execution, as cars could
not pass each other, and therefore the
several companies did by agreements
arrange such running of their cars
over the tracks actually laid by the
Fairmount Passenger Railway Compcii y
and by the Fairmount and Arch Street
City Passenger Railway Company, as
secured to each their separate circuits,
718
Volume 5.
6450. CORPORATIONS.
(2) DENYING USURPATION OF FRANCHISE.
6450.
Form No. 6450.
(Precedent in State v. Western Irrigating Canal Co., 40 Kan. 96.)'
the integrity of their several fran-
chises and the accommodation of the
passengers seeking the cars of either.
The former company have laid a track
from the bridge, along Callowhill
street to Twenty-third street; and the
latter company have laid a track from
the bridge along Callowhill street to
Hamilton, and thence eastwardly along
Hamilton to Twenty-second street. These
are the tracks now in existence and
now used.
7. That by reason of an entire alter-
ation of grades, caused by the con-
struction of the double-decker bridge
at Fairmount and of the necessities of
public travel, they have become con-
vinced that the franchise of a double
track on Callowhill street must be main-
tained. Accordingly they have made
arrangements to remove the tracks laid
by the Fairmount Passenger Railway
to the side of said Callowhill street
and to lay another track beside it on
their own behalf. The effect of this
would be that the double tracks now
existing on Callowhill street, from the
bridge to Hamilton street would be con-
tinued eastward on the same alignment.
Respondents admit the truth of the
first five paragraphs of the bill. Re-
spondents deny that they entered into
an obligation as averred in the sixth
paragraph of said bill; but are advised
that it is immaterial, inasmuch as the
tenor of such an obligation would only
be that respondents should comply with
such ordinances as it was within the
power of the city of Philadelphia to
pass. Respondents admit the truth of
the seventh paragraph of said bill, and
that the averments in the eighth para-
graph are true; but respondents are
advised that said ordinance, so far as
the same is now valid, applies exclu-
sively to the original construction, and
that in the case of entire compliance
therewith, the purpose thereof is fully
met; and respondents do say that their
charter does not confer any power on
the plaintiffs to regulate or control them
on Callowhill street, east of the bridge
at Fairmount. And respondents are
advised that the assent of the General
Assembly is sufficient and ample, and
that no provision of their charter sub-
jects them to a further assent by the
councils of the city of Philadelphia to
the use of Callowhill street. Respon-
dents admit the truth of paragraph nine,
but are advised that said ordinance is
not passed pursuant to the conditions
of the Act of April n, 1868, as above
cited; and that as its purpose was to
secure the assent of the councils of the
city to remove the cobblestones of the
highways, it cannot apply to a body
corporate, whose occupation and use of
streets for the purposes of their char-
tered route had already been assented
to. Respondents admit the truth of
paragraph ten, and of paragraph eleven;
but are advised that the same is imma-
terial as to the subject matters of this
bill of complaint, inasmuch as these
respondents, without such merger and
consolidation, have the grant as afore-
said to lay the track on Callowhill street
now proposed.
And respondents say, that if para-
graph twelve in said bill means to aver
the fact differently from that stated
in the general paragraphs of this
answer, then they deny the same to be
so. That they have never surrendered
any portion of their franchise to the
Commonwealth; that as the chartered
powers of defendants do not limit the
construction of their road to any term,
that completion thereof, or the change
of the mode of running, is for their dis-
cretion, as the owners of the franchise,
and even though this were not so, plain-
tiffs have no standing in this court to
assert a loss of franchise by nonuser,
this being wholly for the Commonwealth,
at her own relation."
1. Judgment was rendered in this case
in favor of the defendant for all costs,
the court holding that an irrigation
company, incorporated under the laws
of Kansas to construct and operate a
canal for irrigation, etc., can, with the
consent of the stockholders, sell its
property to another irrigation com-
pany, if it be done in good faith.
719
Volume 5.
6450. CORPORATIONS. 6450.
[In the Supreme Court of the State of Kansas.
The State of Kansas, on the relation of S. B. Bradford, ~\
Attorney -General. Plaintiff,
> Answer.
The Western Irrigating Canal Co., Defendant.
Now comes the defendant herein, and, answering the petition of
plaintiff, says:] 1
That the Supreme Court of the State of Kansas ought not to take
jurisdiction in this case, for the reason that no public question is
involved therein; that this suit was instituted at the request and
suggestion of the attorneys of one A. T. Soule, who is the principal
owner of the Eureka Union and so called Low-line irrigating canals ;
that the canals of this defendant and of the said A. T. Soule come into
competition with each other, and the said A. T. Soule is attempting
to monopolize the entire irrigating business of Ford county, and as
a part of his said design to monopolize the irrigating business as
aforesaid, he is endeavoring by all means in his power to obstruct,
hinder and delay this defendant in the construction of its canal;
that in order to protect its rights, the defendant, prior to the insti-
tution of this suit, brought a suit in the district court of Ford county,
against the Low-line Canal Company, one of the companies above
named, which is now pending and undetermined; that it was upon
the representation and statements of the said Soule and his attorneys
that the attorney-general was induced to bring this suit, and the
institution thereof is one of the means used by the said A. T. Soule
to hinder, delay, annoy and oppress this defendant; and that the
matters involved in this suit are solely matters of private interest
between this defendant and the said A. T. Soule, and not of a public
nature. Defendant therefore asks the supreme court to dismiss said
suit.
Further answering, the defendant denies that it has assumed or
pretended as of right to possess or use, pursuant to a purchase, the
franchise of the Enterprise Irrigating Company; denies that it is now
unlawfully exercising or in any manner using the powers, privileges
or franchises of the said Enterprise Irrigating Company; denies that
it has attempted, by purchase or otherwise, to succeed to the fran-
chises authorized by law to be exercised by the said Enterprise Irri-
gating Company; denies that it is usurping, intruding into, or is
unlawfully holding or exercising any franchise whatever.
And further answering, defendant says: It has no knowledge or
information of the existence of a corporation named the Enterprise
Irrigating Company, or that any such company ever existed in the
state of Kansas, or at any other place.
[Wherefore, defendant prays judgment that the petition herein be
dismissed, and for its costs.
Jeremiah Mason, Attorney for Defendant.
(Verification.*?^
1. The words in [ ] do not appear in 2. Consult the title VERIFICATIONS.
the reported case, but have been added Investment Company The Return of
to complete the form. Officers to Quo Warranto. Missouri.
720 Volume 5.
6450.
CORPORA TIONS.
6450.
In State v. Talbot, 123 Mo. 69, in which
proceedings the state assailed a corpo-
ration by a quo warranto for illegal
acts, the defendants, among other
things, alleged in their return as fol-
lows: " Farther making return, the said
defendants show that subsequently to
the issuance of said certificate of incor-
poration to the Guarantee Investment
Company, as aforesaid, and while the
said corporation was carrying on in this
state the business of selling, disposing
of, and paying bonds issued on the in-
stalment plan, the said corporation,
together with all others of like incorpo-
ration under the laws of this state, was
confirmed, ratified and recognized by
the state of Missouri in its existence,
franchise, capacity and powers as a cor-
poration by reason and by means of an
act of the general assembly entitled
' An Act to regulate bond investment
companies and companies organized to
place or sell bonds, certificates or de-
bentures on the instalment or partial
payment plan,' and approved April 21,
1893; that said statute became opera-
tive as a law on the twenty- first day of
June, 1893, and that within thirty days
thereafter, to wit, on the nineteenth day
of July, i8<?j>, the said Guarantee Invest-
ment Company complied with the terms
and requirements of the said statute by
depositing with the treasurer of the
state of Missouri securities in the sum
of one hundred thousand dollars, which
were approved and accepted by the said
treasurer as good and sufficient, and
that the deposit still remains with said
treasurer intact and unimpaired." To
this return relator interposed a gen-
eral demurrer, which demurrer was
overruled, the court having found from
the pleadings that the corporation was
legally organized, and that there had
been no charge of misuser of its fran-
chises.
Mutual Protection Association Ohio.
The plea of the defendant, in State
v. Mutual Protection Assoc., 26 Ohio
St. 21, to an information in the na-
ture of a quo warranto, seeking the dis-
solution of a corporation for unlawfully
assuming and usurping certain fran-
chises and privileges, was substantially
to the effect that it " admits that it is a
corporation duly formed under the act
of April 20. 1872, as set out in the in-
formation, and avers that it is exer-
cising and assuming to exercise the
faculties, liberties and franchises con-
ferred by said act and none other.
It admits that it has established an
office at Norwalk, Ohio; employed a
president and secretary to conduct the
business thereof; a medical board to pass
finally upon the applications of persons
desiring to become members of said
association; medical -examiners to ex-
amine applicants for membership in
said association, and general and spe-
cial agents to lay before the public and
individuals the advantages of member-
ship in said association, and to receive
applications therefor, and such other
officers and agents as are needed there-
for; and avers that it has full authority
for so doing under the statute under
which it was incorporated. It dis-
claims being, or assuming to be, a life
insurance company, or to carry on the
business of life insurance, as charged
in the information.
On the contrary, it avers that it is
engaged exclusively in the business
and carrying out the purpose contem-
plated and authorized by the statute
under which it is formed. That it is-
sues certificates of membership to the
several persons becoming members of
the association, stating therein the kind
of benefit and protection the member is
entitled to receive by virtue of his mem-
bership, and the obligation and prom-
ise of all other members to contribute
ratably thereto. That this defendant
simply acts as the agent of the mem-
bers of the association to receive their
contributions and appropriate and ap-
ply them to the objects of the asso-
ciation. That said contributions are
not receivable or collectible until the
conditions arise entitling a member or
his legal representatives to have and
receive the same; and that this defend-
ant is paid therefor a small sum to
defray the expenses of collecting and
disbursing the said contributions for
protection, relief and otherwise."
Judgment was rendered for the de-
fendant on the theory that associations
of persons incorporated under the act
of April 20, 1872 (69 Ohio L. 82), " for the
purpose of mutual protection and reliel
of its members, and for the payment ol
stipulated sums of money to the fami-
lies or heirs of deceased members," are
not subject to the laws of the state re-
lating to life insurance companies.
Railroad Company New York. In
People v. Ulster, etc., R. Co., 58 Hun
(N. Y.) 266, to a complaint in an action
to annul the charter of defendant, a
corporation reorganized pursuant to
New York Laws of 1874, chapter 430,
on the ground that defendant had
5 E. of F. P. 46.
721
Volume 5.
6450.
CORPORA TIONS.
6450.
failed to construct and operate any
portion of its road, between Stamford
and Oneonta, as required by law, de-
fendants interposed the following de-
fenses:
" i. A general denial to the effect that
defendant "ever became bound or lia-
ble, or had lawful right or authority,
or legal or pecuniary ability, to con-
struct any part of said projected rail-
road between Stamford and Oneonta.
2. That the located line of said rail-
road beyond Stamford, through the
town of Harpersfield, runs on the side
of a mountain through a sterile, barren
country, almost uninhabited, and there
are not more than one or two houses
on the line, and no roads leading there-
to, etc., and that another railroad has
been projected from Stamford to Bloom-
ville, and thence to a point at or near
Oneonta by a different route, and two
other corporations are to build and
operate the same, and which, when
completed, can be operated in connec-
tion with that of defendant.
3. That the defendant has made an-
nual reports of its property and earn-
ings under the laws of the state upon
the railroad as operated from Rondout
to Stamford, and has been assessed
thereon as well as upon its franchises
and business, and has paid the taxes
thus assessed, etc.
4. The action is barred by the statute
of limitation.
5. That after this action was com-
menced, the legislature passed an act
amending the Reorganization act of
1874, by adding a new section relieving
a corporation thus organized from fin-
ishing a railroad not then completed,
provided the board of railroad commis-
sioners shall certify that the public
interests do not require it, and that
such certificate has since been made in
relation to the completion of that por-
tion of the road beyond Stamford." In
this case the judgment of the lower
court dismissing the complaint, with
costs, was affirmed.
In Pennsylvania, to a suggestion in
Com. v. Pittsburg, etc., R. Co., 58 Pa.
St. 27, pleaded to the information sub-
stantially as follows:
" i. That they claim to be a body
politic, etc., by virtue of letters patent
issued June nth, 1846, by the governor
of Pennsylvania, in pursuance of an
Act of Assembly of April 3d, 1837, and
the several supplements thereto, viz.:
The first approved the iSth day of
April, 1843, embraced in an act enti-
tled, etc.; which said last act was in
part repealed by a resolution approved
the igth day of April, 1843, embraced
in a resolution entitled, etc.; and which
last mentioned resolution was repealed
by the 6th section of an act approved
the 3d day of April, 1846, entitled, etc.;
and further, by an additional supple-
ment embraced in an act approved the
loth day of April, 1846, entitled, etc.;
and further by an additional supple-
ment approved the i?th day of April,
1846, embraced in an act entitled, etc.;
and by this warrant the said defend-
ants have used, and still use, the liber-
ties, etc., of a body corporate and
politic, under the name and style of
The Pittsburg and Connellsville Railroad
Company, as they well might and still
may, etc.
2. That as to the said liberties, etc.,
to extend the said Pittsburg and Con-
nellsville railroad beyond Connellsville
to Smithfield, or any other point on the
waters of the Youghiogheny , and within
the limits of this Commonwealth, they
have and claim to have and use the
same under and by virtue of the power
and discretion conferred upon them in
and by the jth section of an Act of As-
sembly, approved April i8th, 1843, en-
titled, etc.
3. That as to the said franchises,
etc., to extend the said Pittsburg and
Connellsville railroad to any point they
may select in Somerset or Bedford coun-
ties, so as to form a connection with
the Chambersburg and Allegheny rail-
road, or any other railroad that may be
constructed, they have, and claim to
have and use the same under and by
virtue of the powers conferred on them
in and by the 6th section of an Act of
Assembly, approved the i8th day of
April, 1853, entitled, etc." Under this
plea the court held that the evidence as
shown by the record of the state was
sufficient to prevent the issuance of a
quo warranto.
Street Railroad Company California.
In People v. Stanford, 77 Cal. 360, a
complaint brought by the people of the
state on the relation of the attorney-
general against certain persons for the
purpose of having it determined that
the company had no legal existence as
a corporation to answer for each and
all of the defendants generally and
severally and specifically, denied that
"the defendants, or any of them,
claiming to be the said Protrero and
Bayview Railroad Company, have for
a long time, or do now, or at any time
722
Volume 5.
6451.
CORPORATIONS.
6451.
(3) SETTING UP VALID CONSOLIDATION AGREEMENT.
Form No. 6451.'
(Precedent in Com. v. Atlantic, etc., R. Co., 53 Pa. St. io.) f
[The Commonwealth of Pennsylvania
ex rel. the Attorney-General
against
The Atlantic and Great Western Rail-
way Company.
And now, to wit, on the nineteenth day of January, iS66, comes the
above named defendant, The Atlantic and Great Western Railway
In the Supreme Court of the
Commonwealth of Pennsylvania,
Middle District.
December Term, iB6S.
No. 102.
Information for Quo Warranto.
have unlawfully claimed, or unlawfully
exercised the franchises, powers or
privileges in said city and county in
this behalf in said complaint alleged,
or any franchise, power or privilege."
It was held on appeal in this case, that
a demurrer to this answer was improp-
erly sustained in the lower court, for
the reason that a denial on the part of
the individual defendants, that they
are exercising the alleged corporate
franchise, was a complete defense.
BeligiouB Corporation Massachusetts.
For an answer by a minority of
members to a petition for dissolution,
as well as an answer of trustees of a
fund devoted to assisting a religious
corporation, interposed to a petition for
a dissolution of such corporation, see
the answers substantially set out in
Matter of New South Meeting-House,
13 Allen (Mass.) 497. Compare Warner
v. Bowdoin Square Baptist Soc., 148
Mass. 400.
1. Replication to this plea on the part
of the attorney-general was to the effect
that " there is no record of the said sup-
posed contract agreement and act of
consolidation and merger in the first
plea mentioned, remaining among the
records of the commonwealth, in the
office of the secretary of the common-
wealth, at Harrisburg' etc. To which
replication a demurrer was properly
overruled, with leave to the defendants
to rejoin that such a record deed ex-
isted with &prout patet recordum. Com.
v. Atlantic., etc., R. Co., 53 Pa. St. 10.
2. Another Precedent Illinois. In
Ohio, etc., R. Co. v. People, 123 111. 467,
the answer of the railroad company to
the information in the nature of a quo
warranto, substantially alleged as fol-
lows:
It denies that it was guilty of the
several wrongs charged against it; it
admits " that it was incorporated under
the laws of Illinois , and that such incor-
poration was made by virtue and in
pursuance of an act of the legislature
of Illinois, entitled ' An Act to incor-
porate the Ohio and Mississippi Rail-
way Company, and for other purposes,'
approved February 5, 1861; that in the
first section thereof thirteen persons
were named incorporators of the com-
pany, and that a majority of the per-
sons so named were nonresidents of the
state of Illinois, and were citizens and
residents of other states; that by virtue
of the same section of that act respond-
ent was invested with all the corporate
franchises and rights which had there-
tofore been granted to and vested in
the corporation known as the Ohio and
Mississippi Railroad Company, incor-
porated by an act of the General As-
sembly of the State of Illinois, entitled
'An act to incorporate the Ohio and
Mississippi Railroad Company, and for
other purposes,' approved February
12, 1851; that it refers to both these acts
and makes them parts of its answer,
and insists that by virtue of these
special acts, in pursuance of which it
was incorporated, it became vested
with the right to elect a majority of its
directors, or all of them, from stock-
holders residing outside of the State of
Illinois, and not citizens of Illinois; that
in 1867, and before the adoption of the
present constitution of this state, by
virtue of the laws of the State of Illinois,
and of similar laws in the States of
Indiana and Ohio, respondent became
consolidated with the Ohio and Missis-
sippi Railway Company, and owning and
operating a railroad leading from the
Mississippi river at East St. Louis, Illi-
nois, to Cincinnati, Ohio, all under one
management and one board of directors,
by which consolidation the property,
723
Volume 5.
6451.
CORPORA TIONS.
6451.
Company, by Harvey W. Miller, their attorney, and protesting that
the information and suggestion filed in this case is altogether insuffi-
cient in law; and that the said 77*? Atlantic and Great Western Rail-
way Company need not, by the law of the land, make answer thereto ;
nevertheless, for a plea in this behalf the said The Atlantic and Great
Western Railway Company say that the said commonwealth of Pennsyl-
vania ought not to implead them, the said The Atlantic and Great
Western Railway Company, by reason of the several matters and things
in the said suggestion set forth, because they, the said The Atlantic
and Great Western Railway Company, say:] 1
i. That the Atlantic and Great Western Railway Company claim to be
a body politic and corporate by virtue of a contract, agreement 2 and
act of consolidation and merger made August 19th, iS65, between the
Atlantic and Great Western Railway Company in New York', the Buffalo
extension of the Atlantic and Great Western Railway Company cor-
porations created and operated under the laws of New York; the
Atlantic and Great Western Railroad Company of Pennsylvania, a cor-
poration created under the laws of Pennsylvania; and the Atlantic and
Great Western Railroad Company, a corporation created and operated
under the laws of Ohio: New York, Pennsylvania and Ohio being ad-
stock and franchises of the old constitu-
ent corporations named became com-
pletely merged in respondent, its line
of railroad being connected and con-
tinuous, and which consolidation was,
in all respects, in conformity with the
laws of the States of Illinois, Indiana
and Ohio; that its principal business as
a carrier is between St. Louis, Missouri,
and Cincinnati, Ohio; that its capital
stock is held and owned, excepting a
few shares, by persons outside of Illi-
nois, being largely held in foreign coun-
tries and in New York; that now. and
for some time last past, but one of its
stockholders is or has been a citizen
and resident of the city of Springfield,
Illinois, and that all its other directors
are citizens and residents of other
states (Here follow their names and
respective places of residence); that the
officers of the respondent have always
been of the opinion, and have been so
advised, that under its charter and con-
solidation, by authority of the laws of
this State, with said railroad corpora-
tions in the States of Indiana and Ohio,
the law of the State of Illinois requir-
ing a majority of the directors to be
citizens and residents of the said State
of Illinois did not apply to respondent;
that it has been supported in this
opinion and belief by the fact that a
majority of its directors have never re-
sided in or been citizens of this State,
which fact has been well known to the
citizens and officers of this State, and to
the relator in this proceeding, and still,
until the filing of this proceeding, no
objection has ever been made by either
citizen, officer or relator, and no inquiry
has been sustained thereby by any one;
that respondent has always acted in
this matter in good faith, and with a
desire to comply with the laws of the
State, as they were understood by its
officers, and as they seemed to be under-
stood by the officers of the State." A
demurrer to this answer of this informa-
tion was sustained in the lower court,
which ruling upon appeal by respond-
ent was reversed, the appellate court
being of the opinion that the corpora-
tion did not fall within the constitu-
tional provision mentioned.
1. The words in [ ] are not found in
the reported case, but have been added
to make the form complete.
2. The agreement of consolidation re-
ferred to in the plea commenced with
this preamble: "Whereas, the line of
railroad made and in process of con-
struction by the aforesaid corporation
and companies respectively so unite as
to form a continuous line for the
passage of cars from the city of Buffalo
and Salamanca in said state of New
York to the city of Dayton in the said
state of Ohio, crossing the boundary
lines of said several adjoining states of
New York, Pennsylvania and Ohio at
one and the same point;" the other
material parts of the agreement being
as set out in the plea above.
724
Volume 5.
6452. CORPORATIONS. 6452.
joining states, the laws whereof respectively authorize such consoli-
dation, and the railroads of said companies forming a continuous line
of railroad with each other and crossing the boundary line of New York,
Pennsylvania and Ohio at the same point; the contract having been
first duly submitted to and adopted by a vote of more than two-thirds
of all the stockholders of each of said corporations; and that fact
certified by the secretary of each of the same companies under the
seals thereof, was on the 3d day of October, A. D. i865, filed with the
secretary of state of New York and Ohio respectively, and with
the secretary of the Commonwealth of Pennsylvania, as provided by
law; which said contract, etc., with said certificates, the defendants
now here in court produce. 1
2. That the railroad of the Atlantic and Great Western Railway
Company being connected with the railroad of the Catawissa Rail-
road Company by the intervening railroad of the Philadelphia and Erie
Railroad Company, they claim to lease, etc., the said Catawissa railroad,
and to have, etc., the corporate powers, etc., granted to the Catawissa
Railroad Company under and by virtue of a contract and agreement
made and entered into between \.\\z Atlantic and Great Western Rail-
way Company, the Western Central Railroad Company and the Catawissa
Railroad Company, dated the 1st day of November, A. D. i8P5, which
contract the said defendants now here in court produce, etc.
[Wherefore, the said defendant, the said The Atlantic and Great
Western Railway Company, pray judgment, and that the franchises,
liberties and privileges enjoyed by them, the said The Atlantic and
Great Western Railway Company, claimed as aforesaid, may be ad-
judged and allowed to them, and that they may be dismissed hence
and discharged by the court from the premises so as aforesaid alleged
against them.
Henry W. Miller, Attorney for
The Atlantic and Great Western Railway Company.^
f. Demurrer. 8
(1) To BILL IN EQUITY.
(a) Charging Unlawful Preferences.
DEMURRER TO BILL CHARGING UNLAWFUL PREFERENCES.
Form No. 6452.*
1. The instrument called a certificate of 3. For the formal parts of demurrers,
consolidation of the Atlantic and Great generally, see the title DEMURRERS.
Western Railway Company was held to 4. This demurrer is based on the
be a lawful and valid instrument for facts in Pyles v. Riverside Furniture
the purposes therein expressed, and Co. , 30 W. Va. 132. The bill in equity
upon being filed in the office of the sec- to which this demurrer was sustained
retary of the commonwealth, consti- is set out in full in the reported case,
tuted the defendants a legal corporation The order sustaining the demurrer set
in the state of Pennsylvania. out in the text was as follows, omit-
2. The words in [ J are not found in ting the formal parts: "The demurrer
the reported case, but have been added heretofore interposed to complainant's
to make the form complete. bill, having been duly considered, it is
725 Volume 5.
6453. CORPORATIONS. 6453.
State of West Virginia, \
County of Ohio. \ s
In the Circuit Court.
Jacob B. Pyles, plaintiff,
against
Riverside Furniture Company,
The Commercial Bank, and
S. B. Hildreth and James
Wheeler, Trustees, and others,
defendants.
The defendants, The Commercial Bank and S. B. Hildreth and
James Wheeler, trustees, come by their attorneys and demur to the
bill of plaintiff herein, as being insufficient in law in this,* that the
Riverside Furniture Company, defendant herein, though insolvent, had
a legal right to make an assignment with preferences, and there is
nothing in the statutes of this state prohibiting an insolvent corpo-
ration, organized under the laws of this state, from making an assign-
ment for the benefit of its creditors, and giving preference thereby
to particular creditors.
Watson & Wilson,
Attorneys for The Commercial Bank,
and
S. B. Hildreth and James Wheeler,
Defendants.
(b ) Seeking to Forfeit Franchise of Plank Road Company.
Form No. 6453.
(Precedent in Tripp v. Pontiac, etc., Plank Road Co., 66 Mich. 6.) 1
[State of Michigan :
The Circuit Court for the County of Oakland. In Chancery.
Arthur R. Tripp, Prosecuting Attorney, complainant,
v.
The Pontiac &* Lapeer Plank Road Company, defendant.
The demurrer of the Pontiac &" Lapeer Plank Road Company,
defendant, to the bill of complaint of Arthur R. Tripp, Prosecuting
Attorney, complainant:] 2
This defendant demurs to the said bill, and for cause of demurrer
shows that the complainant has not in and by his said bill made or
stated such a case as entitles him, in a court of equity, to any dis-
covery or relief from or against this defendant touching the matters
contained in the said bill, or any of such matters.
And, for a further cause of demurrer, this defendant shows that
adjudged, ordered and decreed that 1. This demurrer was overruled in the
such demurrer be sustained; and the lower court, but on appeal this ruling
complainant, not desiring to amend his was reversed and the appeal dismissed,
bill, it is further adjudged, ordered and Tripp v. Pontiac, etc., Plank Road
decreed that the same be dismissed, Co., 66 Mich. i.
and that the Commercial Bank, S. P. 2. The words in [ ] are not found in
Hildreth and James Wheeler, the demur- the reported case, but have been added
ring defendants, recover of the com- to make the form complete,
plainant their costs herein expended."
726 Volume 5.
6454. CORPORATIONS. 6454.
the said circuit court in chancery is not the proper tribunal to hear,
try, and determine the matters stated and charged in the com-
plainant's bill, viz., that said defendant had not constructed its said
road according to the charter, and statutes forming a part thereof,
under which said road was constructed, as is alleged in said bill; but
that the Supreme Court of the State of Michigan has jurisdiction, and
is the proper tribunal, by information in the nature of a quo warranto,
to hear, try, and determine the said matters.
And, for a further cause of demurrer, this defendant shows that
said circuit court in chancery is not the proper tribunal to hear, try,
and determine the matters stated in said bill as to whether or not
the defendant had, after having constructed its road, suffered the same
to get out of repair so as to be inconvenient and dangerous for the
passage over it of teams and vehicles, or as to whether the defendant,
for the space of one year or more last past, had ceased entirely to
keep up its road, or any part thereof, and more than one year ago
removed all of its gates from its said road, and abandoned the same
without the consent of the Legislature of the State of Michigan, and
has ever since that time continued to keep said gates so removed,
and to abandon its said road without the consent of the said Legisla-
ture; but that, by the charter and statutes forming a part thereof
named in said bill, fines and penalties are amply provided to protect
the public of all their rights pertaining to the dangerous condition of
said road or otherwise, and that such fines and penalties are to be
recovered, and the right to take toll in certain cases forfeited, by such
corporations in actions at law, and not by proceedings in chancery.
Wherefore, and for divers other good causes of demurrer appearing
in the said bill of complaint, this defendant demurs to the said bill,
and to all the matters therein contained, and prays the judgment of
this honorable court whether it shall be compelled to make any
further or other answer to the said bill; and it prays to be dismissed,
with its reasonable costs in this behalf sustained.
[By Jeremiah Mason,
Solicitor for Defendant.] 1
(2) To PETITION.
DEMURRER TO PETITION FOR INJUNCTION AND WINDING UP.
Form No. 6454 .
(Precedent in State v. Iowa Mut. Aid Assoc., 59 Iowa 129.)*
[In the District Court in and for Wapello County, Iowa.
State of Iowa, ex rel. W. V. Lucas, Auditor "]
of the State of Iowa, plaintiff, I Blank Term, iB81.
against [ Demurrer.
Iowa Mutual Aid Association, defendant. J
1. The words in [ ] do not appear in when the action was commenced, it not
the reported case, but have been added having been organized until April, 1881,
to complete the form. and could not therefore have been re-
2. This demurrer was properly BUS- quired to make an annual statement
tained, it appearing that the defendant until January, 1882, whereas the action
could not have been in default as alleged against it was begun in August, 1881.
727 Volume e .
6455. CORPORATIONS. 6456.
The defendant demurs to the petition herein, and shows to the
court the following grounds therefor:] 1
1. Because the allegations of the petition show that defendant was
duly and legally incorporated under and by virtue of the provisions
of the Code of i875, particularly under section 1091, and other sec-
tions in regard to corporations other than for pecuniary profit.
2. Because the allegations of the petition show that defendant is a
mutual aid association, duly organized under the laws of Iowa, and
that the so-called contracts of insurance in the plaintiff's petition
mentioned, are the mutual obligations of the members of the asso-
ciation for the mutual benefit of such member [s].
3. Because the allegations of the petition show that defendant is
not such an insurance company as is contemplated by sections 1161,
1162 and 1163 of the Code of i873, and that the provisions of chapter
5, title 9 of the Code of i87$ do not apply to the defendant.
[Jeremiah Mason, Defendant's Attorney.] 1
(3) To PLEA.
DEMURRER TO PLEA THAT CORPORATION HAD CEASED TO ACT.
Form No. 6455.2
(Commencing as in Form No. 6453, and continuing to *) that it does
not show that defendant had wound up its business as a corporation,
and had ceased to exist in fact at the time the alleged cause of action
arose. (Concluding as in Form No. 6452}.
g. Replication. 3
1. The words in [ ] are not found in Plymouth Plank Road Company, after
the reported case, but have been added their incorporation, and after the erec-
to make the form complete. tion of toll-gates upon their plank road,
2. This demurrer is based on facts in and the exaction of toll thereat, did
Millers. Newberg Orrel Coal Co., 31 willfully or negligently so manage their
W, Va. 837, and was filed to a plea that affairs that afterwards, to wit, on the
the charter of the corporation had ex- first day of January, 1869, and from
pired, and that it had ceased to exist in thence continually hitherto to this
law at the time the alleged cause of ac- time, the said Plymouth plank road be-
tion arose, and should have been sus- came and was broken, worn out, de-
tained for the reason that the plea was stroyed, its plank discarded, rotten and
bad in not also averring that the corpo- warped, and its road-bed full of holes,
ration had wound up its business and gullies, ruts and excavations through-
ceased to exist in fact as well as in law. out, over and upon its entire length
3. The replication to a plea to an infor- of about 16 miles, and through the
mation in the nature of a quo warranto townships of Greenfield, Redford, Livo-
in People v. Plymouth Plank Road nia and Plymouth, from its commence-
Co., 31 Mich. 178, was as follows: ment at its intersection with the
"I. And the said Isaac Marston, at- Grand River plank road, in said town-
torney-general, having heard the said ship of Greenfield, and extending
plea of the said The Plymouth Plank through said townships of Redford &\\&
Road Company, for the said people of the Livonia, to its termination in said town-
state of Michigan, saith: That the" said ship of Plymouth; and the bridge of said
people ought not to be barred from road, over the river Rouge, in said town-
having their aforesaid information ship of Redford, has been and remained
against the said Plymouth Plank Road during the winter in iS/j and 187^, en-
Company, because he says that the said tirely broken down and destroyed, for
728 Volume 5.
6456.
CORPORA TIONS.
6456.
REPLY TO PLEA TO INFORMATION IN THE NATURE OF QUO WARRANTO.
Form No. 6456.'
( Title of court and~\
cause as in Form V Reply.
No. 6483.)
Plaintiff for reply to defendant's answer admits the corporate
existence of the defendant and its corporate powers to sue and be
sued, etc., to construct and maintain a canal, etc., and to exercise
the power of eminent domain as granted by the act of general
assembly of the state of Ohio passed January 10, i8^7, and the act
supplementary thereto, and as pleaded in the defendant's plea; but
denies the right and power of the defendant to sell, lease or abandon
any portion or portions of its canal under and by virtue of said statute
a period of one month, so that the said
plank road was, during all the time
aforesaid, to wit, since January /, 1869,
and still continues, utterly unsafe and
dangerous to persons, horses and
vehicles to pass over and upon; that
these defects are not confined to any
particular portion of said road, but ex-
tend its entire length; and there has
not been during Jive years last past any
two consecutive miles in the whole road
which has not been and continued in
the unsafe and dangerous condition
above specified.
And so the attorney-general says that
the board of directors of the said com-
pany have not at all times, nor at any
time since the said first day of January,
1869, although toll-gates had been
erected and toll exacted thereat upon
the said plank road long before that
time, kept the said plank road in good
repair or in a safe condition to travel
upon; nor has the said company so
kept the same in good repair or in a
safe condition to travel upon; and this
he is ready to verify.
Wherefore he prays judgment, and
that the said Plymouth Plank Road Com-
pany may be ousted and altogether
excluded from its corporate rights,
privileges and franchises.
II. And the said attorney-general
further saith that the said people ought
not to be barred from having their
aforesaid information against the afore-
said Plymouth Plank Road Company ; be-
cause, he says that the said Plank Road
Company, after their incorporation,
mentioned in their said plea, did not
and has not so constructed its road 'as
to have at least sixteen feet width of
good smooth and permanent road, and
so constructed as to permit carriages
and other vehicles to meet and pass
thereon,' for any two consecutive miles
of said road, but on the contrary thereof
the said plank road was constructed of
a much less width than sixteen feet, and
has so remained from the time of such
construction until the present time, so
that upon its entire length carriages or
other vehicles cannot conveniently or
easily pass each other; and the said
road has so continued until this time,
and this he is ready to verify. Where-
fore he prays judgment, that the said
Plymouth Plank Road Company may be
ousted and altogether excluded from
its corporate rights, privileges and
franchises."
A demurrer to this complaint was
properly overruled, although it was ad-
mitted that the pleader had not been as
careful as he might perhaps have been
in drawing the replication.
See also People v. Pontiac Bank, 12
Mich. 528, for another replication to a
plea filed loan information in the nature
of a quo warranto.
1. This reply is based on the facts of
State -v. Pennsylvania, etc., Canal Co.,
23 Ohio St. 125. The defendant had
pleaded an act of the legislature grant-
ing to it the franchises named in the
information, and the court held that it
was proper for the relator, in his replica-
tion, to aver the cause of forfeiture, and
to pray for a judgment of dissolution
as is set forth in the form.
Rejoinder to replication to plea to in-
formation for quo warranto against a
railroad corporation is set out in Com.
v. Pittsburg, etc., R. Co., 58 Pa. St. 32.
Upon the final determination of the
case judgment was rendered for the
defendants.
729
Volume 5.
6457.
CORPORA TIONS.
6457.
of March 20, i87, and avers that said act was in conflict with the
provisions of the constitution of the state, and therefore void.
And the relator also avers that the defendant had failed to keep
its canal in repair for a period of more than twelve months at one
time, both before and after the passage of the act of March 20, i87,
in violation of the provisions and conditions of said act of January
10, i8#7, and the act supplementary thereto, and that, by reason
thereof, the defendant had ceased to be a corporation and had
forfeited its charter.
And the relator further avers that the defendant has abandoned
certain portions of its canal and leased other portions without legal
authority to do so, and in violation of its charter, and thereby its
charter had become forfeited to the State of Ohio.
Wherefore, F. B. Pond, as attorney-general aforesaid, asks judg-
ment that the charter of the corporation be forfeited and the cor-
poration be dissolved, etc.
F. B. Pond, Attorney-General, attorney for the plaintiff.
h. Judgment or Decree. 1
1. Judgment dissolving consolidated cor-
poration, as set out in Ketcham v.
Madison, etc., R. Co., 20 Ind. 260,
omitting formal parts, was as follows:
" i. That the said supposed contract,
entered into between the Board of
Directors of the Peru and Indianapolis
Railroad Company and the Board of
Directors of the Madison and Indian-
apolis Railroad Company ; as set forth in
the complaint herein, was and is void
and of no effect.
2. That said supposed contract be
and is by the court set aside and
annulled to all intents and purposes.
3. That the said organization of the
two companies called the Madison,
Indianapolis and Peru Railroad Com-
pany was and is null and void, and is
by the court here dissolved.-
4. That the said Peru and Indianapolis
Railroad Company and the Madison and
Indianapolis Railroad Company be and
they are each declared valid and exist-
ing independent corporations, notwith-
standing said contract of consolidation.
5. It is further ordered, adjudged
and decreed, that any outstanding
obligations or liabilities of the con-
solidated organization which have been
fairly and honestly incurred for the
joint benefit of the two companies,
parties to this suit, or for the sole
benefit of either, shall be settled and
paid by the said companies, respect-
ively, in proportion to the real interest
that each has, or may have, in such
outstanding obligations or liabilities."
A judgment denying an injunction in a
proceeding of this nature is set out in
Steinberger v. Independent Loan, etc.,
Asso., 84 Md. 625, which, omitting
formal parts, is as follows:
" That the plaintiffs are not entitled
to the relief of a writ of injunction
restraining and prohibiting the defend-
ant, its officers and agents from further
conducting its affairs and the appoint-
ment of a receiver to take charge of its
affairs and a decree dissolving the de-
fendant corporation, as prayed in the
bill of complaint. It appearing, how-
ever, in the proceedings in Article XII
of the by-laws of the defendant body
corporate filed in the cause, that the
plaintiffs, as free shareholders of said
body corporate, have the right to with-
draw therefrom; it is further adjudged,
ordered and decreed, that the defendant
pay to each of the plaintiffs his or her
proportionate share of the assets of said
body corporate, and that this cause be
referred to an auditor of this court,
with directions to state an account from
the pleading and proof now in the cause,
and such other proofs (if any) as the
parties may produce before him, on
giving the usual notice, showing the
proportionate share of each of the plain-
tiffs in and to the assets of the defend-
ant body corporate."
Decree dismissing information for writ
of quo warranto in Murphy v. Farmers'
Bank, 20 Pa. St. 420, is as follows:
"And now on April 4, iSj'j, this case
having been fully heard, it is considered
730
Volume 5.
6457. CORPORATIONS. 6457.
. Form No. 6457.
(Precedent in Frank v. Morrison, 58 Md. 425.)'
Citizens National^Bank of Baltimore } ^ ^^ CQ ^ Q{ ^,
Chesapeake Mutual Loan and Building f tf%% l87 ^
Association of Baltimore City, et al. \
By and with the consent of all parties it is, this first day of Decem-
ber, 1 874, adjudged, ordered and decreed, that Robert D. Morrison,
George J. Appold, Samuel Snowden and Joseph Friedenwald be, and
they are hereby appointed receivers, with the power and authority
to wind up the affairs of the said Franklin Land and Loan Company,
of Baltimore City, in order to make an equitable distribution of the
assets of said company amongst its creditors and shareholders.
And it is further ordered, that the said receivers give notice to all
persons having claims against the said Franklin Land and Loan Com-
pany, of Baltimore City, to file their claims, properly authenticated,
with the Clerk of this Court on or before the sixth day of February,
1 875, in two daily newspapers in the City of Baltimore, once a week,
for three successive weeks, before the second day of January next.
And it is further ordered, that Robert D. Morrison, Esquire, and
George J. Appold, Esquire, the temporary receivers, shall yield up
and deliver to the said receivers all the books, papers, property,
assets and effects, of the said corporation defendant, in their pos-
session, on being reimbursed and indemified for all the moneys
expended, and pecuniary responsibilities incurred by them as such
receivers.
And it is further ordered, that the same receivers shall, (subject to
and adjudged, that the relator, Michael receiver shall proceed to wind up the
Murphy, has shown no right or title to affairs of the said association the
maintain the information in the name ulterior object of this decree being that
of the Commonwealth ; and that the the property and assets of the said de-
same be and hereby is quashed and fendant shall be equitably distributed
wholly taken for naught; and that the among the creditors of the said defend-
relator pay to the defendants their law- ant. And it is further ordered, thaty.
ful costs in this behalf expended." Thomas Scharf, the receiver aforesaid,
1. Decree appointing receiver to wind up give notice to all creditors of the said
a corporation is set out in Hayes v. defendant to file their claims in this
Brotzman, 46 Md. 519, which, omitting cause, and upon the proof of the same
the formal parts, is as follows: that the said creditors be allowed their
" The bill and answer in the above distributive portion of the assets of the
cause having been read and considered, said defendant. And it is further
and the same submitted for decree.it ordered, that the said /. Thomas Scharf ,
is thereupon, on this the i8th day of receiver as aforesaid, shall prosecute
August, A.D. 1875, by the Circuit Court and defend all suits at law that may
of Baltimore City, adjudged, ordered now be pending, or may be hereafter
and decreed, thaty. Thomas Scharf be instituted, in which the said defend-
and he is hereby appointed receiver of ant may be a party. And it is further
the South Ann Street Perpetual Savings ordered, that the said J. Thomas
Association of Baltimore City, and that Scharf, the receiver aforesaid, before
the said association turn over to the he enters upon the discharge of the
said receiver all its books, papers, duties of the said receiver, shall give
promissory notes, writing obligations, the usual bond in the penalty of five
choses in action, claims, demands, thousand dollars, for the faithful per-
property and assets, and that the said formance of his duties as said receiver."
731 Volume 5.
6458.
CORPORATIONS.
6458.
the order of this Court,) nave the power to sell the property of said
corporation defendant, and make all collections of outstanding
indebtedness, and shall have the power to institute all such proceed-
ings at law and in equity, as may be necessary for the purpose of
enforcing the rights of said defendant corporation, subject to the
direction of this court.
And it is further ordered,-that before the said Robert D. Morrison,
George J. Appold, Samuel Snowden, and Joseph Friedenwald proceed
to act as receivers by virtue of this decree, they shall each give bond
co the state of Maryland in the penalty of one hundred thousand dollars,
with surety or sureties to be approved by this Court, and conditioned
for the faithful performance of the trust reposed in him by this
decree, or which may be reposed in him by any future decree or
order in the premises.
Campbell W. Pinkney.
Form No. 6458.'
[At a Trial Term of the Superior Court of Buffalo, held at the City
and County Hall, in the City of Buffalo, New York, on the fourteenth
day Qi April, i80.] 2
Present, Hon. Edward W. Hatch, Judge presiding.
1. This judgment is copied from the
record in People v. Buffalo Stone, etc.,
Co., 131 N. Y. 140.
Order Appointing Receiver, etc. Michi-
gan. In Turnbull v. Prentiss Lumber
Co., 55 Mich. 387, in a creditor's suit to
wind up an insolvent corporation, the
following order was made:
" The motion for the appointment of
a receiver in this cause having come
on to be heard, and solicitors for the
respective parties having been heard
thereon, now, on motion of Turnbull
&* Dafoe, solicitors for the complain-
ant, it is ordered by the court that
Charles B. Greely be, and he is hereby,
appointed receiver of all the property,
equitable interests, things in action
and effects of said Prentiss Lumber
Company, a corporation, one of the
above named defendants, belonging or
in any way appertaining to said defend-
ant (said corporation) at the time of the
commencement of this suit, to wit, on
the zd day of February, A. D. i8<5V
(except such as are exempt by law
under the statutes of this state, if any),
and vested with all the rights and
powers of a receiver in chancery, upon
the filing with the register of this court
a bond for the faithful performance of
his duties as such in the penal sum of
five thousand dollars, and the approval
by this court. And it is further ordered
that said Prentiss Lumber Company and
its proper officers assign, transfer and
deliver over to said receiver, on oath,
under direction of the court or the judge
thereof, all and singular the property,
real and personal, of or belonging to
said corporation, said defendant and
the said Prentiss Lumber Company, its
officers and agents, forthwith surrender
and deliver to said receiver all the
assets, materials, tools, machinery,
fixtures, effects, and property of every
description, nature or kind of or be-
longing to said Prentiss Lumber Com-
pany; and also all money, drafts and
bills of exchange, checks or other evi-
dence of indebtedness due and owing
to said Prentiss Lumber Company, as
well all books of account, books of
record of said corporation, accounts,
deeds, bonds, mortgages, certificates of
stock, vouchers and papers of every
nature and description belonging to
said corporation, and that said receiver,
or either or any of the parties to this
cause, have leave to apply to the court
from time to time for such further
order or direction as may be necessary."
2. The superior court of Buffalo has
been abolished, and the jurisdiction
formerly possessed by it vested in the
supreme court. N. Y. Const. (1895),
art. 6, 5.
732
Volume 5.
6459. CORPORATIONS. 6459.
The People of the State of New York \
against > Judgment.
The Buffalo Stone and Cement Company. )
This cause having been duly reached on the calendar in its regular
order at a Trial Term of this court, before the -Hon. Edward W.
Hatch, one of the judges thereof, on the twenty-first day of January,
i890, and a jury trial of this action having been waived in open court
by the counsel of the respective parties therein; and the case having
been tried before court, and the decision of said judge having been
filed with the clerk of this court on the fourteenth day of April, iWO,
in which he decides judgment among other things that the plaintiff is
entitled to judgment, dissolving the defendant corporation with
costs; and the costs of the plaintiff having been adjusted at one hun-
dred and sixteen dollars and sixty-one cents (116.61).
Now on motion of Strong & Brendel, of counsel for plaintiff, it is
adjudged that the charter of the defendant the Buffalo Stone and
Cement Company be, and the same hereby is, dissolved, and the rights,
privileges and franchises of said defendant are hereby declared
forfeited.
It is further adjudged, that a receiver of the property and effects
of the defendant be appointed with all the power and authority con-
ferred by law, and subject to all the duties and liabilities imposed
upon receivers in such cases.
It is further adjudged, that the defendant, its trustees, directors,
managers and other officers be forever restrained from collecting
and receiving any debt or demand, and from paying out or in any
way transferring or delivering to any person, any money, stock,
property, or effects of the said corporation and from exercising any
of the corporate rights, franchises or privileges of the corporation.
It is further adjudged, that the plaintiff recover of the defendant
the sum of $116.61, adjusted as costs in this action.
Judgment signed this fourteenth day of April, i890.
Moses Shire, Clerk.
Form No. 6459. !
At a Special Term of the Supreme Court of the State of New York,
held at the County Court-house, in the City of New York, on the
thirty-first day of January, i&8p.
Present, Hon. George C. Barrett, Justice.
The People of the State of New York\
The North River Sugar Refining f J ud g ment -
Company. }
The summons and complaint in this action having been duly served
on the defendant, and said defendant having served its answer herein,
and the issues in said action having been tried at a Trial Term of this
court at the court-house in the city of New York, on the fourteenth day
of November, 1888, before Mr. Justice Barrett and a jury, and at the
1. This judgment is copied from the record in People v. North River Sugar
Refining Company, 121 N. Y. 582.
733 Volume 5.
6459. CORPORATIONS. 6459.
close of the evidence the said plaintiffs having moved the court to
direct a verdict for the plaintiffs, and the said defendant having
moved the court to direct a verdict for the defendant, and the said
court having denied said motion of the defendant and granted
said motion of the plaintiffs, and the jury under the direction of the
court having rendered a verdict in favor of the plaintiffs, and a motion
for judgment now coming on to be heard;
Now, upon reading and filing said summons and complaint, the
answer and the verdict aforesaid, and on motion of Charles F. Tabor,
attorney-general, after hearing Mr. , counsel for the defendant,
It is adjudged and decreed that the defendant has offended against
the provisions of the act under which it was created and has violated
provisions of law whereby it has forfeited its charter and become
liable to be dissolved by abuse of its power.
And it is further adjudged and decreed that the said defendant,
The North River Sugar Refining Company, be and the same is hereby
dissolved, and its corporate rights, privileges and franchises forfeited
to the people of the state of New York.
And it is further adjudged and decreed that the said defendant,
The North River Sugar Refining Company, its trustees, directors, man-
agers and other officers, attorneys and agents, be, and each of them
hereby is, forever restrained and enjoined from exercising any of the
corporate franchises, powers, rights or privileges of the defendant,
and from collecting or receiving any debts or demands belonging to
or held by the defendant, and from paying out or in any manner in-
terfering with, transferring or delivering to any person, any of the
deposits, moneys, securities, property or effects of the said defendant
or held by it.
It is further adjudged and decreed that Henry Winthrop Gray, Esq.,
of the city of New York, be and he is hereby appointed receiver of
all the property, real and personal, things in action and effects, of
the said corporation, The North River Sugar Refining Company, held
by and vested in it or in or to which it may be in anywise interested
or entitled with the usual powers and duties enjoyed and exercised
by receivers according to the practice of this court and of the statutes
in such cases made and provided.
It is also adjudged and decreed that, before entering upon the duties
of his trust, such receiver execute and file with the clerk of New York
county a bond, with at least two sufficient sureties to the people of
the state of New York, in the penal sum of one hundred thousand dol-
lars, conditioned for the faithful discharge by said receiver of the
duties of his trust; such bond to be approved as to its sufficiency,
form and manner of execution by a justice of the Supreme court.
Upon the filing of such bond thus approved, the said receiver is au-
thorized and directed to take possession of and sequestrate the prop-
erty, things in action and effects, real and personal, of the defendant
herein, and to take and hold all property held by or in possession of
said defendant corporation and to secure and reduce to possession all
property to which said corporation may be entitled; that an account
of the assets and property and debts and liabilities of said defendant
be taken, and that the property of such defendant be distributed
734 Volume 5.
6460. CORPORA TIONS. 6460.
among its stockholders or persons lawfully entitled thereto, and fair
and honest creditors in the order and proportions prescribed by law
in case of the voluntary dissolution of a corporation.
It is further adjudged and decreed that such further application
may be made to this court under the provisions of this decree or
order as the receiver may be advised is proper and necessary for
his instruction in the management and conduct of his trust.
It is further adjudged and decreed that no application shall be
made to any court against the receiver relative to or in any way
connected with the duties of said receiver, or the funds or assets
of the defendant above mentioned, or their transfer, sale or delivery,
unless at least five days' notice of such application be first given to
said receiver and to the attorney-general of the state of New York
and the defendant's attorney.
It is further adjudged and decreed that said receiver proceed
according to law to convert into money all the property and assets
held or owned by said defendant or to which said defendant may be
in anywise entitled, and forthwith upon receiving such money he
shall deposit the same in the United States Trust Company of the city
of New York to the credit of said receiver, to be held by him subject
to the further order of the court, and said money so deposited as
aforesaid with said Trust Company shall not be delivered over by it,
unless the check, draft or demand therefor be accompanied with a
certified copy of an order of this court directing such payment; such
order to be made only on notice to the attorney-general and the
defendant's attorney.
And it is further adjudged that the plaintiffs, the people of the
state of New York, recover of the defendant, The North River Sugar
Refining Company, the sum of ninety-three dollars and fourteen cents
costs and disbursements of this action, which said sum the said
receiver is hereby directed to pay to the attorney-general.
Edward F. Reilly, Clerk.
2. Proceedings for Voluntary Dissolution. 1
1. Voluntary dissolution of a corpora- Idaho. Rev. Stat. (1887), 5186 et
tion may be accomplished as provided seq.
by statute. Consult the following Illinois. Starr & C. Anno. Stat.
statutory provisions: (1896), p. 1028, par. $o et seq.
Alabama. Civ. Code (1886), 1683 Iowa. Code (1897), 1617.
et seq. Kansas. i Gen. Stat. (1897), p. 700,
Arizona. Rev. Stat. (1887), 239. 45 et seq.
Arkansas. Sand. & H. Dig. (1894), Kentucky. Stat. (1894), 561.
1429 et seq. Maryland. Pub. Gen. Laws (1888),
California. Code Civ. Proc. (1897), p. 388, 265.
1227 et seq. Massachusetts. Pub. Stat. (1882), p.
Colorado. Mills' Anno. Stat. (1891), 569, 40 et seq.
497, 619 et seq., 640; Laws (1891), Michigan. How. Anno. Stat. (1882),
P. 95- 8 174 ''"?
Connecticut. Gen. Stat. (1888), 1942 Minnesota, Stat. (1894), 3430.
et seq.\ Laws (1893), p. 224. Missouri. Rev. Stat. (1889), 2513
Delaware. 17 Laws, c. 147 (Rev. Stat. et seq.
(1893), c. 70). Montana. Code Civ. Proc. (1895),
Florida. Rev. Stat. (1892), 2154 et 2190 et seq.
seq. Nevada. Gen. Stat. (1885), 822 et
Georgia. 2 Code (1895), 1879 et seq. seq.
735 Volume 5.
6460. CORPORATIONS. 6460.
a. Petition. 1
Form No. 64 6 o. 2
Court of Common Pleas, for the City and County of New York.
In the matter of the application of the trustees ]
of the corporation called I p
Importers and Grocers' Exchange of New York [
for a Voluntary Dissolution.
To the Court of Common Pleas for the City and County of New
York:
The petition of Henry F. Hitch, Ira Bursley, Moses G. Wanzor,
Thomas T. Barr, Levis W. Minford, James C. Russell, Henry Hentz,
Osgood Welsh, Benjamin C. Arnold, as trustees of the Importers and
Grocers' Exchange of New York, respectfully shows:
First. That the said Importers and Grocers' Exchange of New York
is a corporation created by and under the laws of the state of New
York, having been incorporated under the provisions of the act
entitled " An Act to provide for the incorporation of Exchanges or
Boards of Trade," passed May 3, 1877, and its principal office is located
at No. 107 Water street, in the city of New York, in the county of
New York.
Second. That your petitioners are a majority of all the trustees
having the management of the concerns of said corporation, and hold
and own most of the capital stock thereof. That the said Henry F.
Hitch is president and Samuel C. Burdick is treasurer of the Exchange.
That the full board of said trustees consists of fifteen members.
That the names and residences of all such trustees who do not unite
New Hampshire. Pub. Stat. (1891), See also list of statutes cited supra,
c. 147, 10. note i, p. 527.
New Mexico. Comp. L. (1884), 211. 1. For formal parts of petitions of this
New York. Birds. Rev. Stat. (1896), character consult the title PETITIONS.
p. 678, 97 et seq. 2. This petition is copied from the
North Carolina. Code (1883), 694. record in Matter of Importers, etc.,
North Dakota. Rev. Codes (1895), Exch., 132 N. Y. 212, which was in
2912. special proceeding to dissolve a corpora-
Ohio. Bates' Anno. Stat. (1897), tion under the New York Code of Civil
ff)^\ et seq. Procedure, 2419-32. The court of
Oklahoma. Stat. (1893), 968 et seq. appeals affirmed an order of the general
Oregon. Hill's Anno. Laws (1892), term of the supreme court reversing an
3235. order of the court of common pleas of
Pennsylvania. Bright. Pur. Dig. New York city denying the application,
(1894), p. 426, 115 et seq. holding that a corporation organized
South Dakota. Dak. Comp. Laws under the act of 1887 (N. Y. Laws (1887),
(1887), 2938 et seq. c. 228), providing for the organization
Utah. Rev. Stat. (1898), 3661 et of exchanges or boards of trade, may
seq. be dissolved by the court upon the peti-
Vermont. Stat. (1894), 3735, et tion and consent of a large majority of
seq. its trustees and members, when it ap-
Washington. Ballinger's Anno, pears that the corporation is doing no
Codes & Stat. (1897), 4275. business because of the diverse interests
West Virginia. Code (1891), p. 510, of its members, notwithstanding the
56. fact that the corporation is solvent and
Wisconsin. Sanb. & B. Anno. Stat. a minority of the trustees and members
(1889), 1788, et seq. oppose the dissolution.
736 Volume 5.
6460. CORPORATIONS. 6460.
in this petition are as follows (names and residences of trustees)?-
Third. That the nature of the business and the objects for which
said corporation was formed are (nature and objects of corporation)?
Fourth. That the said Exchange has already outlived its usefulness;
that as early in its existence as the year i&&5, and- after two years
of business, a petition was presented to the trustees by the mem-
bers of said Exchange asking them to wind up the corporation and
procure its dissolution for the reason that it was of no real benefit to
its members. That such petition was signed by one hundred and ninety
out of a total membership of about two hundred and twenty. That at
that time the trustees deemed it best to continue business for some
time longer, in the hope that by amendment of rules and regulations
then suggested by nonpetitioning members the Exchange might
still be made to serve the purpose of its creation; but it has been
found that, aside from making an unreliable daily quotation of the
price of tea, and giving the number of tons of the receipts and stock
of tea and sugar, it furnishes no information of any value. The daily
circular was omitted for eighteen months and has only recently been
revived by a few personally interested.
That the Exchange room is not attended from day to day by more
than two or three members. That a young man is kept in attendance,
who, at the instance of a few men engaged in the tea trade, writes up
a few figures on the blackboard and sends out a daily circular of
prices based thereon. This was also omitted for eighteen months,
but has been revived as above stated. That the trust fund of the
Exchange has continued to increase from annual interest but no new
membership tickets are sold. That the price or value of seats or
privileges of the floor has receded from seven hundred and fifty dollars
to two hundred dollars each. That aside from a very few, no interest
is manifested by members in the affairs of the Exchange. That the
meeting or Exchange room has been removed from time to time to
smaller quarters until at present one small room at No. 107 Water
street, located on the third floor of the building, divided by a panel
partition is found to be more than ample accommodation for the few
who ever go there, and the rental of said room is the sum of three
hundred dollars per annum.
1. The names and residences of the "To foster trade and commerce in
trustees not uniting in the petition were groceries and East Indian and South
as follows: " Charles G. Boardman, re- American products; to protect such
siding at 102 East Fifty-seventh street, trade from unjust or unlawful exac-
New York City; Henry E. Hawley, re- tions; to reform abuses in such trade;
siding at ib West Thirty-third street, to diffuse accurate information and to
New York City; Fred. A. Mead, Jr., produce uniformity and certainty in
residing at / West Fifty-sixth street; the customs and usages of the trade in
Charles W. Beebe, residence not known, said merchandise; to settle differences
but doing business at 130 Water street, between the members of said corpora-
Neiv York City; Joachim J. Francke, tion arising out of the trade in said
residing in Havana, Cuba, and Everett merchandise and to promote a more
F 'razor, residing at New Brighton, friendly intercourse between merchants
Staten Island." engaged in said trade; and generally
3. The nature of the business and ob- to increase the facilities for conducting
jects for which the corporation was the trade in groceries and East Indian
formed, as referred to in the text, were and South American products."
5 E. of F. P. 47. 737 Volume $
646 1 . CORPORA TIONS. 646 1 .
That the members of said Exchange number about two hundred and
fifteen, and the sale of membership tickets or certificates from
time to time has accumulated a trust fund now amounting to
upwards of sixty thousand dollars, in the distribution of which all mem-
bers and stockholders are interested.
That the great majority of all the members are still desirous of
having the corporation dissolved, and to further their wishes, your
petitioners, being a majority of the trustees, favoring such action, and
believing it beneficial to the interest of the stockholders and mem-
bers, therefore file this their petition accordingly, to procure a volun-
tary dissolution of said corporation and the suitable distribution of
its trust fund to those entitled thereto.
Fifth. That the schedule hereto annexed states, so far as your
petitioners know, or have the means of knowing (substance of
schedule)!
Sixth. There is no stock remaining unissued or unpaid.
Seventh. That no other application has been made for the order
herewith applied for.
Wherefore, your petitioners pray for a final order dissolving said
corporation and appointing a receiver of its property, to wind up its
affairs and distribute its assets to those entitled thereto and for
such other relief as may be just.
Dated New York, May 2, i887.
(Signatures of Petitioners}
Hascall, Clarke <5r Vander Poel,
Attorneys for Petitioners, 71 Broadway, N. Y. City.
{Schedule annexed.}
( Verification. ) z
Form No. 6461 . 3
In the Superior Court of the City and County of San Francisco,
State of California.
1. Schedule referred to in the text made of all the property of the corporation,
statements showing the following: and of all the books, vouchers and
" 1st. A full and true account of all securities relating thereto,
the creditors of the corporation, and of 6th. A statement of each incum-
all unsatisfied engagements entered brance upon the property of the corpo-
into by and subsisting against the cor- ration by mortgage, judgment, pledge
poration. or otherwise.
cd. A statement of the name and 7th. A full, just and true account of
place of residence of each creditor, and the capital stock of the corporation,
of each person with whom such an en- specifying the name of each stock-
gagement was made, and to whom it holder; his residence, if it is known, or
is to be performed, if known; or, if if it is not known, stating that fact;
either is not known, a statement of the number of shares belonging to
that fact. him; the amount paid in upon his
3d. A statement of the sum owing to share; and the amount still due there-
each creditor, or other person specified upon. Also, the names and residence
in the last subdivision, and the nature of of all members, if known; or if it is
each debt, demand or other engagement, not known, stating that fact."
4th. A statement of the true cause 2. Consult the title VERIFICATIONS.
and consideration of the indebtedness 3. California. Code Civ. Proc.,
to each creditor. 1228-1230. See also list of statutes cited
5th. A full, just and true inventory supra, note I, p. 735.
738 Volume 5.
6462. CORPORATIONS. 6462.
In the matter of the application of the )
Stabot Carriage Company, > Petition for Dissolution,
a corporation, for Voluntary Dissolution. )
To the Honorable Superior Court of the City and County of San
Francisco, in the State of California.
The petition of the Stabot Carriage Company, corporation aforesaid,
represents and states:
I. (Like first paragraph in Form No. 6460.)
II. That at a meeting of the stockholders and members of the said
corporation, the said Stabot Carriage Company, called for that pur-
pose, the dissolution of the corporation was resolved upon by a two-
thirds vote of the stockholders of said corporation.
III. That all claims and demands against the said corporation, the
said Stabot Carriage Company, have been satisfied and discharged.
IV. That the total number of shares of the capital stock of said
corporation \s five thousand (5,000~). That four thousand five hundred
and fifty shares of the said capital stock of said corporation was duly
represented at said meeting called as aforesaid, at the office of said
company, in said city and county, for the purpose of the dissolution
of said corporation, on the first day of May, i857, and that the vote
of all the stockholders at said meeting was as follows: Four thousand
five hundred and fifty shares represented by stockholders as aforesaid,
were for dissolution.
V. That the board of directors or trustees of said corporation con-
sist of five, all stockholders thereof, and residents of said city and
county of San Francisco, and their names are as follows: L. P. Stan-
ford, Marcus Heit, Fisher Marsh, D. B. Field and J. M. Putner, and
that said persons so named as trustees aforesaid, have had the sole
management of the affairs of said corporation for one year next pre-
ceding this application, and are now such managers.
Wherefore, your petitioners pray that your honor will order this
petition to be filed with the clerk of this court, and that the clerk
give notice of the nature of this application, not less than thirty nor
more than fifty days, and of the time and place of hearing the same,
by publication in some newspaper published in the city and county
of San Francisco. That after the time of publication has expired
your honor may, upon five days' notice to any persons who have filed
objections within the time prescribed by section 1231 of the Code of
Civil Procedure, or without notice if no objections have been filed,
proceed to hear and determine this application, and after hearing,
adjudge and declare said corporation dissolved in accordance with
the law in such cases made and provided.
{Signatures of the majority of the board of trustees, directors, or officers
having the management of the affairs of corporation. )
( Verification. ) x
b. Order to Show Cause.
Form No. 6462.-
1. Consult the title VERIFICATIONS. For the formal parts of orders to show
2. New York. Birds. Rev. Stat. cause, generally, consult the title OR-
(1896), p. 678, 97 et seq. See also list of DERS AND RULES TO SHOW CAUSE.
statutes cited supra, note I, p. 735.
739 Volume 5.
6463. CORPORA TIONS. 6463.
{Title of court as in Form No. 647. )
( Title of cause as in Form No. 6460. )
On reading and filing the petition of Henry F. Hitch and (naming
other trustees), of the Importers and Grocers' Exchange of New York, a
corporation created under the laws of the state of New York, whose
principal office and place of business is located at 107 Water street
in the city of New York, in the county of New York, state of New
York, and also the schedule to said petition annexed, which said peti-
tion and schedule were duly verified by the petitioners on the second
day of May, iS87, and Messrs. Hascall, Clarke and Vander Poel, attor-
neys for petitioners, having appeared herein on motion of said counsel,
it is
Ordered, That all persons interested in the said corporation, the
said Importers and Grocers' Exchange of Neiv York, be and appear
before this court at the county court-house in the city of New York, in
the said county of New York, on \\\z fifth day of March, i887, to show
cause why the said corporation, the said Importers and Grocers' Ex-
change of New York, should not be dissolved.
And it is further ordered that a copy of this order be published at
least once in each week of three weeks preceding the said fifth
day of March, iS87, in the New York Journal and Advertiser and the
New York Times, newspapers published in the city of New York, in
the county of New York, in the state of New York, wherein this order
is entered.
Edward W. Hatch, Justice Supreme Court.
e. Order Fixing Time and Place of Hearing Petition.
Form No. 6463.'
{Title of court and cause ) Order for notice of Application for Volun-
as in Form No. 6461.) \ tary Dissolution,
On reading the petition for voluntary dissolution, heretofore filed
in this court, of the Stabot Carriage Company, a corporation, which
said petition prayed among other things for the fixing of a time and
place by this court for the hearing of said petition and for a direc-
tion to the clerk of the Superior Court ordering him to publish a notice
thereof and of the nature of said application, and Oliver Ellsworth,
attorney for said corporation, the Stabot Carriage Company, having
appeared in behalf of the petitioners, it is now ordered that the said
petition be filed with the clerk of the Superior Court of the city and
county of San Francisco, and that on Friday, the twelfth day of
November, iS97, at ten o'clock in the forenoon of that day, or as soon
thereafter as counsel can be heard, at the court-room of this court
in the new City Hall in the city and county of San Francisco, state of
California, the said petition shall be heard, and that the said clerk of the
said Superior Court of the city and county of San Francisco be and he is
hereby ordered to publish a notice of said petition and of the general
1. California Code Civ. Proc., 1230. For the formal parts of orders, gener-
See also list of statutes cited supra, ally, consult the title ORDERS.
note i, p. 735.
740 Volume.?.
6464. CORPORATIONS. 6465.
nature of said application- not less than thirty nor more than^f/Ty
days preceding the said twelfth day of November, i87, in the San
Francisco Examiner, a daily newspaper published daily in the said
city and county of San Francisco.
Charles W. Slack, Judge.
Dated at San Francisco, ihz fifteenth day of September, i897.
d. Clerk's Notice of Time and Place of Hearing Petition.
Form No. 6464.'
( Title of court and cause ) Notice of Application for Voluntary Dis-
as in Form No. 6461.) f solution.
Please take notice that the said corporation, the Stabot Carriage
Company, formed under and by virtue of the laws of the state of
California, did on the first day of September, i87, persent to the
Honorable Superior Court of the city and county of San Francisco
its petition wherein it prayed for a voluntary dissolution and
that the said Superior Court of the city and county of San Fran-
cisco has fixed Friday, the twelfth day of November, i8P7, at ten o'clock
in the/0r<?noon, or as soon thereafter as counsel can be heard, and
the court-room of the said Superior Court in the new City Hall in the
city and county of San Francisco as the time and place when and
where the said application will be heard. In witness whereof, I have
hereunto set my hand and affixed my seal of the said Superior Court
this eleventh day of November, i897.
(SEAL) Calvin Clark, Clerk.
Oliver Ellsworth, Attorney for Petitioners.
e. Objections by Creditor.
Form No. 6465.'
(Title of court and cause ) Objections to Application for Voluntary
as in Form No. 6461. j Dissolution.
Now comes Philip Albrecht, a creditor of the said corporation, the
said Stabot Carriage Company, and files his objection to the applica-
tion of the said company heretofore filed herein asking for a volun-
tary dissolution, because he says that all the claims and demands
against the said corporation, the said Stabot Carriage Company, have
not been satisfied and discharged, and particularly a claim of him the
said creditor, the said Philip Albrecht, against the said corporation
for the purchase price of certain goods sold and delivered by him the
said Philip Albrecht to the said corporation, which has not been satis-
fied and discharged, which said claim is for certain goods, to wit,
five thousand wheels of the value of five thousand dollars, which said
sum the said corporation agreed to pay the said Albrecht as purchase
1. California. Cote Civ. Proc., 2. California. Code Civ. Proc.,
1230. See also list of statutes cited 1231. See also list of statutes cited
supra, note i, p. 735. supra, note I, p. 735.
For the formal parts of notices, gener-
ally, consult the title NOTICES.
741 Volume 5.
6466. CORPORA TIONS. 6466.
price of said wheels and which said sum is now due and unpaid.
Wherefore the said Philip Albrecht respectfully prays that the said
application for a voluntary dissolution of the said corporation may
be by the court denied.
Philip Albrecht,
By his attorney, Daniel Webster.
Dated at San Francisco, the fourth day of October, i87.
( Verification. ) l
f. Petition of Minority Stockholders and Creditors to Dismiss
Application.
Form No. 646 6. 2
Supreme Court Cortland County.
In the matter of the application for the ~|
Voluntary Dissolution of
The Hitchcock Manufacturing Co. J
To the Supreme Court of the State of New York:
The petition of William Martin and Duane E. Call, The Second
National Bank of Cortland, German American Bank of Buffalo, New
York, and C. Coles Dusenbury, William C. Bond and Louis Dusenbury,
respectfully shows and alleges that said Hitchcock Manufacturing
Company is a domestic corporation, created and organized under the
laws of the state of New York, and doing business therein other
than an insurance and moneyed corporation. That the name of said
corporation is as aforesaid, Hitchcock Manufacturing Company, and
that said corporation had prior to the thirteenth day oi July, ^95,
been located arid doing business as such in the village of Cortland,
county of Cortland and state of New York.
That on the thirteenth day of July, i&95, upon the petition of Caleb
B. Hitchcock, Carroll C. Hitchcock and Fred S. Bennett, all of the direc-
tors of said Hitchcock Manufacturing Company, verified on the twelfth
day of July, i895, and upon the schedule and affidavit attached thereto
verified on the same day, and upon notice to the attorney-general,
an order to show cause why said corporation, the Hitchcock Manufac-
turing Company, should not be dissolved, returnable at Norwich on the
tenth day of December, iS95, was made by Hon. Gerrit A. Forbes, jus-
tice of the Supreme Court, and entered in Cortland county clerk's
office in Cortland, New York, on the fifteenth day of July, i&95.
That on said thirteenth day of July, iS95, upon the same petition,
affidavit, schedule and notice, an order was also made by Hon. Gerrit
A. Forbes, justice. of the Supreme Court, restraining and enjoining the
1. Consult the title VERIFICATIONS. ray Hill Bank, 9 N. Y. App. Div. 546.
2. This petition is copied from the rec- Petition must show that the dissolu-
ordin Matter of Hitchcock Mfg. Co., i tion will benefit the stockholders. Mat-
N. Y. App. Div. 164. For the formal ter of Pyrolusite Manganese Co., 29
parts of petitions of this character, gen- Hun (N. Y.) 429.
erally, see the title PETITIONS. The statute must be fully complied with
Petitionfor voluntary dissolution will be in all the particulars of various defects
entertained on due notice, even though pointed out. Matter of Dubois, 15
a bank is in the possession of the super- How. Pr. (N. Y. Supreme Ct.) 7.
intendent of banking. Matter of Mur-
742 Volume 5:
6466. CORPORATIONS. 6466.
Hitchcock Manufacturing Company from exercising its corporate func-
tions, and restraining and enjoining the creditors of said Hitchcock
Manufacturing Company from bringing any action against said Hitch-
cock Manufacturing Company or taking any further proceedings in any
action theretofore begun, and appointing James Devine of Syracuse,
New York, and Caleb B. Hitchcock of Cortland, Neiu York, temporary
receivers of all the property, goods, chattels and effects of said
corporation, which said order was also entered in Cortland county
clerk's office on \.^ fifteenth day of July, i8P5.
That said temporary receivers immediately thereafter qualified as
such, and entered upon the discharge of their duties, and are now
acting as such temporary receivers of said Hitchcock Manufacturing
Company.
That on the third day of July, i8#-5, an action was begun in the
Supreme Court by service of a summons and complaint upon said
Hitchcock Manufacturing Company by your petitioners William
Martin and Duane E. Call, upon four promissory notes made by said
Hitchcock Manufacturing Company, in all to the amount of eight hun-
dred and eighty-five dollars and fifty-six cents. That your petitioners
William Martin and Duane E. Call were copartners, doing business
as such, under the firm name and style of Martin cr* Call, and having
their office and principal place of business as such copartners in the
village of Cortland, county of Cortland and State of New York.
That your petitioner The Second National Bank of Cortland is a
domestic corporation, to wit: "A national bank, duly chartered and
organized according to law, and under and by virtue of the laws of
the United States, and under and by virtue of an act of congress
approved February 25, 1865, and an act of congress approved June
3, 1864, under the name and style of The Second National Bank of
Cortland," and that said petitioner is doing business as such bank
under said name at Cortland village, Nnv York.
That on the twelfth day of July, \W5, an action was begun in the
Supreme Court by service of summons and complaint upon said
Hitchcock Manufacturing Company by said The Second National Bank
of Cortland, upon several promissory notes of the said Hitchcock
Manufacturing Company, amounting in all to seven thousand two hun-
dred and twenty-nine dollars and ninety-six cents.
That your petitioner the German American Bank of Buffalo, New
York is a domestic corporation, to wit: " A state bank duly chartered
and organized according to law, and under and by virtue of the laws
of the state of New York, under the name and style of The German
American Bank of Buffalo, New York" and that said petitioners are
doing business as such bank, under said name, at the city of Buffalo,
county of Erie, New York. That on the twelfth day of June, iS95,
two actions were begun in the Supreme Court by service of summons
and complaint upon said Hitchcock Manufacturing Company by said
German American Bank of Buffalo, New York, upon two promissory
notes, amounting in all to six hundred dollars. That on or about the
first day of July, i8P5, a stipulation was given said Hitchcock Manu-
facturing Company, the defendant in said actions, extending their
time to answer twenty days.
743 Volume 5.
6467. CORPORATIONS. 6467.
That your petitioners, C. Coles Dusenbury, William M. Bond and
Louis Dusenbury are copartners, doing business as such under the
firm name and style of Dusenbury 6 Bond, at No. 83 Leonard street
in the city of New York. That on the third day of July, i85, an
action was begun in the Supreme Court by service of summons and
complaint upon said Hitchcock Manufacturing Company by said peti-
tioners, C. Coles Dusenbury, William M. Bond and Louis Dusenbury,
upon an account for goods, wares and merchandise sold and delivered
to said Hitchcock Manufacturing Company and upon several promissory
notes made by said Hitchcock Mamifacturing Company, amounting in
all to seven hundred and sixty-two dollars and sixteen cents.
Your petitioners further allege that no other steps or proceedings
have been taken in any of said actions other than as aforesaid and
that there is justly due and owing from said Hitchcock Manufacturing
Company to each of said petitioners the several amounts hereinbefore
set forth, and that there are no counter-claims or offsets to them,
and that said Hitchcock Manufacturing Company has no defense to
either of said actions.
Wherefore, your petitioners ask and pray fora rule or order of this
court vacating and setting aside the order made herein on the
thirteenth day of July, 1 895, and entered in Cortland county clerk's
office on the fifteenth day of July, \W5, appointing James Devine and
Caleb B. Hitchcock temporary receivers of said Hitchcock Manufac-
turing Company, and enjoining and restraining the creditors of said
Hitchcock Manufacturing Company from beginning any action against
said company or taking any further proceedings in actions theretofore
begun, and for such other or further order or relief as shall be just,
with costs of this motion.
Dated Cortland, New York, the eighth day of November, iS96.
Wm. Martin,
German American Bank of Buffalo,
per James Dougherty.
Dusenbury 6 Bond,
per James Dougherty.
Hector Cowan,
President Second National Bank.
( Verification^-
g. Decree. 2
Form No. 6 4 6 7 . 3
In the matter of the application ~\ In the Court of Common Pleas,
of the Hisdale Dry Goods Com- I No. 1, of the County of Alle-
pany for the Dissolution of its j gheny, of the December Term,
Charter. J i807. No. 102.
And now, to wit, on this eighth day of December, A. D. i8#7, it ap-
pearing that, according to the order of this court, notice of the
1. Consult the title VERIFICATIONS. 3. Pennsylvania. Bright. Pur. Dig.
2. For the formal parts of decrees, (1894), p. 426, 115, et seq. See also
generally, consult the title DECREES. list of statutes cited supra, note I,
P- 735-
744 Volume 5.
6468. CORPORATIONS. 6468.
application by petition of the Hisdale Dry Goods Company for disso-
lution, and that said application would be granted on the fifth day
of November, i8P7, unless exceptions thereto should be filed on or
before that day, was published once a week for three weeks, accord-
ing to law, and the rules of court, as appears by affidavits filed and
the certificates of the auditor-general, state treasurer, and the
attorney-general having been filed in this case, showing that all taxes
due the commonwealth of Pennsylvanii have been paid into the state
treasury by said corporation, it is now ordered and decreed that the
accounts of the directors of said corporation, filed with the petition
aforesaid, be approved and confirmed absolutely, and that said cor-
poration be and it is hereby dissolved, and all and singular its powers,
franchises, privileges and faculties are hereby extinguished and de-
termined forever. Provided, that this decree shall not go into effect
until a certified copy thereof be filed and recorded in the office of
the secretary of commonwealth.
3. Proceedings After Dissolution.
a. By or on Behalf of Corporation. 1
(1) BY RECEIVER.
COMPLAINT OF RECEIVER TO OBTAIN PROPERTY OF INSOLVENT
CORPORATION.
Form No. 6468.*
Supreme Court Washington County.
Frederick I. Baker, as receiver "
of the Fort Ann Woolen Com-
pany, plaintiff,
against
Louis Emerson and James A.
Emerson, defendants.
The above named plaintiff, suing as receiver of the Fort Ann
Woolen Company, by leave of the court respectfully shows, upon
information and belief,
I. That on or about the twelfth day of September, i&93, in an action
1. Proceedings by and against corpora- shown that the corporation was insol-
tions, generally, see supra, note I, vent and could not pay its debts in due
p. 527. course of its business, and that the de-
2. This complaint is copied from the fendants had received an advantage
record in the case of Baker v. Emerson, and that the company had meant that
4 N. Y. App. Div. 348. The proceed- they should receive an advantage, which
ing was by a receiver to obtain property constituted an intent to make an undue
of an insolvent corporation. The ap- preference by the corporation in favor
pellate division reversed the judgment of a creditor.
of the supreme court in favor of the For formal parts of complaints, gener-
defendant, dismissing plaintiff's com- ally, consult the title COMPLAINTS, vol.
plaint, the court holding that it was 4, p. 1019.
745 Volume 5.
6468. CORPORATIONS. 6468.
of sequestration pending in the Supreme Court of the state of New
York, wherein the Merchants' National Bank of Whitehall was the
plaintiff, and the above named the Fort Ann Woolen Company, a
domestic corporation of the state of New York, was the defendant,
this plaintiff was, in and by final judgment, duly made and en-
tered in the said action, appointed a permanent receiver of the said the
Fort Ann Woolen Company, and thereupon duly qualified and entered
upon the discharge of his duties as such receiver.
II. That, on or about the twenty-ninth day of May, iS93, and for
some time prior thereto, the above named the Fort Ann Woolen Com-
pany was insolvent, and unable to meet its liabilities as the same
became due and payable; that at the date aforesaid the assets of said
company according to prices at sales thereof did not exceed in value
and amount the sum of seventeen thousand dollars, or thereabouts,
while the liabilities of the said company then amounted to the sum of
fifty thousand dollars and upwards.
III. That at the date last above mentioned and for several years
prior thereto, the said company was engaged in the manufacture of
woolen goods, its general office and place of business being located at
Fort Ann, Washington county, New York, and that among the cus-
tomers of said company was the firm of Hull & Co., of Poughkeepsie,
New York, of which firm the defendants are said to be partners.
That during the months of April and May, iS93, said company sold
and delivered to said firm of Hull & Co., at Poughkeepsie, New York,
goods amounting to eight thousand nine hundred and seventy-seven dol-
lars and seventy-one cents, or thereabouts, and that on the twenty-ninth
day of May, i8P<3, the said firm of Hull & Co. was indebted to said
Fort Ann Woolen Company, upon account thereof, in the sum of four
thousand nine hundred and fifty- seven dollars and seventy-one cents, or
thereabouts.
IV. That at the date last above mentioned and prior thereto vari-
ous creditors of said Fort Ann Woolen Company, comprising banks and
individuals, held and owned promissory notes of said company
amounting in the aggregate to fifty thousand dollars or thereabouts,
and upon said last mentioned date certain of said promissory notes
amounting in the aggregate to twelve thousand dollars and upwards,
past due, unpaid and lying under protest, were held and owned by
the First National Bank of Glens Falls, the Central National Bank of
Troy, and other creditors.
V. That on or about the date last above mentioned, John M. Barnett
was the president and treasurer of said Woolen Company and Volney A.
Richmond was its secretary. That at or prior to the said date, said
banks above mentioned declined and refused to renew said notes, or
extend the time for the payment thereof, and threatened legal proceed-
ings against said company, unless the same were promptly paid. That
said firm of Hull & Co. and these defendants were informed thereof
and had notice and knowledge of the financial condition of said com-
pany at said date. That on the second day of June, i S93; attachments
were issued against said company, and on \.\\t fifth day of June, i893,
the same were levied and said company suspended business.
VI. That the defendants Louis Emerson and James Emerson are now,
746 Volume 5.
6468. CORPORATIONS. 6468.
and were during several years last past, copartners doing business
under their firm name of Emerson er* Co., private bankers at War-
rensburgh, Warren county, New York. That on or about the second
day of February, 1 893, the defendants discounted for said Fort Ann
Woolen Company its promissory note, dated that day,^for the sum of
three thousand dollars, payable four months from date; that said note
matured on the fifth day oi June, iS93.
VII. That on or about said twenty-ninth day of May, i893, said
John M. Barnett and Volney A. Richmond, the president and secretary
of ,said Fort Ann Woolen Company, for and in behalf of said corpora-
tion, made the draft or bill of exchange of said company in writing,
dated on that day, directed to the said firm of Hull 6 Co., requiring
them to pay to the order of the defendants three thousand and seventy-
five dollars on the first day of November, i893, and delivered the same to
defendants and thereupon credit said firm of Hulldf Co., upon account
of goods theretofore sold and delivered as hereinbefore mentioned,
with the sum of three thousand and seventy-five dollars; that the interest
upon said draft or bill of exchange, from the date it was drawn until
the date of maturity, November 1, thereafter, amounted to seventy-five
dollars. That, thereupon, said draft or bill of exchange was duly
presented to said Hull 6 Co. for acceptance, and was accepted, and
said Fort Ann Woolen Company debited the amount thereof to said
Hull 6* Co. upon their account with said Fort Ann Woolen Co., for
goods sold and delivered as hereinbefore set forth.
VIII. That said draft or bill of exchange, or the proceeds thereof,
was received and accepted by the said defendants in payment and
satisfaction of said promissory note of three thousand dollars, matur-
ing on the fifth day of June thereafter, and thereupon said note was
canceled; that said draft or bill of exchange was paid at maturity by
said firm of Hull 6 Co.
IX. That the above mentioned transactions of the twenty-ninth day
of May, 1 895, or thereabouts, were had, and that said draft or bill of
exchange was made and accepted, and the same, or the proceeds
thereof, transferred to said defendants, and said note paid in con-
templation of the insolvency of said Fort Ann Woolen Company, and
in violation of the statute in such case made and provided; and that
the transactions above mentioned and described constituted an
unlawful transfer or assignment, in contemplation of the insolvency
of said corporation, to the defendants, and that such transfer or
assignment was void.
X. That prior to this action plaintiff, as receiver aforesaid,
demanded payment from the defendants of said sum of three thou-
sand dollars, and that the same be refunded and restored to the plain-
tiff as assets of said corporation for the benefit of its creditors, but
that the defendants have neglected to comply with such demand.
Wherefore plaintiff demands judgment against the defendants for
the sum of three thousand dollars, besides interest thereon from the
twenty-ninth day of May, i&93, besides the costs of this action; and
for such other or different relief as may be right.
Potter <5r> Lillie, Plaintiff's Attorneys.
747 Volume 5.
6469. CORPORATIONS. 6470.
(2) FOR MANDAMUS. 1
Form No. 6469.*
To the Honorable the Judges of the Supreme Court of the Common-
wealth of Pennsylvania, Middle District:
The Commonwealth of Pennsylvania on relation of The Alliance Pe-
troleum and Coal Company, a corporation, respectfully represents:
That on the twenty-eighth day of February, i8&5, J. J. Allen and
four others associated themselves to form a corporation under the
act of July 18, i863, for incorporating mechanical manufacturing, min-
ing and quarrying companies, and by their agreement it was provided
that their principal office should be in Philadelphia; that having com-
plied with the provisions of the law, the governor incorporated them
by letters patent on the twenty-third day of March, i8&5, by the name
of The Alliance Petroleum and Coal Company ; that on the twenty -seventh
day of February, \W6, they applied to the Court of Common Pleas of
Philadelphia to be dissolved, and that court decreed, on the ninth day
of April, 1866, that the corporation "be hereby dissolved." That the
said Alliance Petroleum and Coal Company further set forth that they
had transmitted to Eli Slifer, secretary of the commonwealth, a cer-
tified copy of said decree with the request that it be filed in his office
according to the provisions of the act of assembly, and that he refused
to permit the same to be filed.
The petitioner showing the premises, and that he is without further
adequate and specific remedy at law, therefore prays that an alterna-
tive writ of mandamus may be issued directed to the said Eli Slifer,
the said secretary of the said commonwealth, requiring him the said
secretary to receive and file the decree above set forth or that a rule
on the said secretary may be granted requiring him to show cause
why the mandamus should not be issued against him for the purposes
aforesaid, and your petitioner will ever pray, etc.
Daniel Webster, Attorney-General,
Attorney for Petitioner.
( Verification.^
(3) To REVIVE SUIT AGAINST DEBTOR.*
Form No. 6470.*
1. For forms relating to mandamus 5. This petition is based on the facts in
proceedings, generally, consult the title McCoy v. Farmer, 65 Mo. 244, in which
MANDAMUS. case it was held that the supreme court
2. This petition was based on the facts in would not review the action of the trial
Com. v. Slifer, 53 Pa. St. 71. Peremp- court in overruling a motion to dismiss
tory mandamus was awarded directed on the ground that the charter of the
to the secretary of the commonwealth, plaintiff corporation had expired and
For the formal parts of petitions of this in permitting a substitution of parties
character consult the title PETITIONS. and a revival of the suit, unless these
3. Consult the title VERIFICATIONS. were assigned as errors in a motion for
4. For Forms relating to reviving of a new trial and that the debts due a
suits, generally, consult the title RE- moneyed corporation had not become
VIVOR AND ABATEMENT. extinct upon its dissolution.
748 Volume 5.
647 1 . CORPORA TIONS. 647 1 .
John P. McCoy and (names f others), plaintiffs,
William Farmland (names of others'), } St 5 te .
, f To the May Term,
defendants. Q . '
J 1*74.
Plaintiffs state that hitherto, to wit, on \hzfirst day of J/izy, i871,
suit was commenced in this Circuit Court by the Independence Fire and
Marine Mutual Insurance Company, a corporation organized under the
laws of the state of Missouri, on a note executed to it by the defend-
ants due four months after date, and dated January 1, i861, for ninety -
six dollars and seventy-three cents. That defendants appeared to the
action and filed their answer, subsequently to which time, November,
iS73, the charter of the said company, by the terms of the act creating
it, expired, at which time the present plaintiffs were elected directors
of said corporation at the last meeting held for that purpose by the
said company, and that no other directors were elected at any time
subsequently.
Wherefore, plaintiffs pray that they, being the last board of di-
rectors, should be permitted to prosecute the same as trustees for the
benefit of all persons interested.
Oliver Ellsworth,
Attorney for Plaintiffs.
( Verification^-
(4) FOR WRIT OF PROHIBITION. 2
Form No. 6471.'
In the Supreme Court of the State of California.
Theodore Havemeyer and (naming the others),
petitioners,
Petition for Writ of
Prohibition.
against
The Superior Court for the City and County
of San Francisco, Department No. 6,
William T. Wallace, Judge.
To the Honorable the Judges of the Supreme Court of the state of
California :
i. Your petitioners respectfully represent, that in the month of
November, 1888, the people of the state of California, on the relation
of the attorney-general, commenced an action in the Superior Court
of the city and county of San Francisco against the American
Sugar Refinery Company, a corporation organized under the laws
of the state of California. That the object of such action was to
have declared forfeited the charter of said company. That said cor-
1. Consult the title VERIFICATIONS. emptory writ of prohibition was issued,
2. For forms relating to writ of pro- the court holding that when a trading
hibition, generally, consult the title corporation ceased to exist, its property
PROHIBITION, WRIT OF. should be used to pay its debts and
3. This petition for a writ of prohibi- that only a creditor or stockholder can
tion was based on the facts in Have- ask for the appointment of a receiver to
meyer v. Superior Ct., 84 Cal. 327, take charge of the corporate property,
in which case an absolute and per-
749 Volume 5.
6471. CORPORATIONS. 6471.
poration appeared and answered to the complaint, and after trial had,
the judgment of said Superior Court was pronounced declaring the
forfeiture and imposing upon the corporation defendant a fine of free
thousand dollars, and costs of suit. That said judgment was rendered
on the eighth day of January, iS90, and on the same day, at the
instance of the attorneys representing the state, a rule was issued
and served requiring the said corporation and its attorneys to show
cause, on the tenth day of January, why a receiver should not be
appointed to take charge of the estate and effects of the said defend-
ant corporation, and to distribute the same according to law, or to
preserve the same pending an appeal herein, if such appeal be taken
herein, on the ground that said defendant corporation has been dis-
solved and has forfeited its corporate rights. That on said eighth
day of January, the corporation duly appeared and the hearing
was continued until the twentieth day of January of the same year.
That in the meantime, on the eighteenth day of January, i890, the
corporation duly served and filed its notice of appeal to this court
from the judgment against it, and at the same time filed in due form
a bond in the penal sum of twelve thousand dollars to stay proceed-
ings on said judgment. That the motion for a receiver came on to
be heard, and the judge of the said Superior Court held the matter
under advisement until the seventeenth day of February, i890, on
which day he made an order appointing a receiver, in which, among
other things, the receiver was directed to take charge of all the prop-
erty, real, personal and mixed, of the said defendant, to hold the
same, and to dispose of it under the direction of the court, upon
the filing of a bond, which was to be approved by the said judge.
That, later in the same day, the said receiver presented his bond for
approval, and it was duly approved.
2. That ever since the twenty-first day of March, iS89, your peti-
tioners have been the owners in fee simple in their own right of the
several tracts and parcels of land in San Francisco {Here was set
forth specific description of the land and buildings); that ever since said
date they have been carrying on in said buildings the business of
refining sugars for sale in the markets of California and elsewhere;
and they, also, have offices, furniture, books, and other personal
property used by them in and about said business; that they do not
use, hold or possess said property, or any part thereof, in trust, for
the use or benefit of the American Sugar Refinery Company, the
defendant in the action referred to, or any of its directors, trustees,
creditors or stockholders, but solely for themselves, and for their
own exclusive use and benefit, and have ever since said thirty-first
day of March, i&89, been in the quiet and peaceable possession of
the same, claiming title thereto and the exclusive ownership thereof;
that since September, iS89, Henry C. Mott has been the general agent
and attorney in fact of the petitioners, in actual charge and custody
of all of said property, and duly authorized to conduct said business.
3. That the said receiver appointed by the said Superior Court
made various attempts to take possession of the property and
premises of your petitioners, but that he has in fact failed to so
obtain possession, and never did have, and has not now, possession
750 Volume 5.
647 1 . CORPORA TIONS. 647 1 .
of the property, or any part thereof, heretofore belonging to the
American Sugar Refinery Company, and which is now claimed by the
petitioners to belong to them. But that the said receiver, notwith-
standing these repeated failures to obtain possession of the said
property, and your petitioners' constant refusal of and resistance to
his demands, is threatening to cause the arrest of such employees of
your petitioners as have charge of the premises, that is to say, the
agent and the superintendent of the works, for contempt of the said
Superior Court in resisting his demand. That great damage would
result from the possession of said property by the receiver and the
consequent stoppage of the works.
4. Your petitioners further represent that they have through their
agent, Henry C. Mott, presented the foregoing facts to the Superior
Court, and called its attention to the excess of jurisdiction by it
committed in making said order, and in directing the said receiver
to enter upon and take possession and control of their said property,
and that they have requested said court to modify its said order so
as to direct him to bring a proper action for the recovery of said
property instead of taking possession without action, which request
said Superior Court has denied.
5. Your petitioners further represent that the said order, so far as
it authorizes the receiver to take the property now in their posses-
sion and claimed by them, exceeds the power and jurisdiction of the
said Superior Court and is in violation of their rights; that they are
not parties to said action of the people against said American Sugar
Refinery Company, nor did they make any appearance or participate
in any respect in said action.
6. Your petitioners further represent that after said Judgment
against the said American Sugar Refinery Company was entered, said
company, on the eighteenth day of January, \WO, took and perfected
an appeal therefrom to this court and duly filed an undertaking
sufficient to stay execution thereof.
7. Your petitioners further represent, that they have no plain,
speedy or adequate remedy against the said proceedings of the said
Superior Court in ordinary course of law.
Wherefore plaintiffs ask that a writ of prohibition herein may be
issued to said Superior Court in the city and county of San Francisco,
department No. 6, and the judge thereof, commanding and directing
said court, and said judge, and also its said receiver, Patrick Reddy,
to desist and refrain from further proceedings upon the order afore-
said appointing its said receiver, and from exercising any of the
powers in said order granted with regard to any property in the
possession of said Havemeyer er Elder through their agents or
employees, and especially with said sugar refinery, and from interfer-
ing with or disturbing the possession and control of the said Have-
meyer &* Elder of the said sugar refinery, or any other property by
them possessed and claimed in their own right.
(Signatures of Petitioners^)
Oliver Ellsworth Attorney for Petitioners.
{Verification.^
1. Consult the title VERIFICATIONS.
751 Volume 5.
6472. CORPORA TIONS. 6472.
(5) ANSWER 1 ALLEGING DISSOLUTION.
SUPPLEMENTAL ANSWER OF DEBTOR ALLEGING EXPIRATION OF
CORPORATION.
Form No. 6472.
(Precedent in Conwell v. Pattison, 28 Ind. 511. )*
[State of Indiana, ) In the Marion Common Pleas Court, February
Marion County. \ Term, iB67.
Abraham B. Conwell, President of the ~\
Bank of Connersville,
\ Supplemental Answer.
T. T. N. Pattison.
Now comes the defendant, and by leave of court files his supple-
mental answer to the complaint of plaintiff herein, and for answer
thereto says] 3 that said Bank of Conner sville was organized under the
general Banking law of the state of Indiana, approved May 28th, 1852;
that said bank, about the 1st of January, i855, failed to redeem its
notes in circulation, and went into liquidation, and that in May, i855,
the bonds and securities deposited with the Auditor of State were
sold by said Auditor, under the law, in New York, to redeem the
circulation of said bank, and said bank wholly ceased to do a bank-
ing business, and failed and refused to comply with the requirements
of the act of the general assembly of the State of Indiana, approved
March 3d, 1855, and thereby forfeited its corporate power to do a
general banking business, and that the time fixed by law for such
banks to wind up their business expired on the 1st oi March, 1 857, at
1. For formal parts of answers, gen- poration had been dissolved and ceased
erally, consult the title ANSWERS IN to exist since the execution of the note.
CODE PLEADING. may be pleaded in abatement but not
2. Expiration of Charter. Although in bar. Hartsville University v. Ham-
the Indiana statute allowed a corpora- ilton, 34 Ind. 506. In that case de-
tion to continue for three years after fendant's answer contained three para-
the expiration of its charter in order to graphs, which are set out in full in the
collect debts due it, where no receiver reported case, all of which were held to
had been appointed and no extension be defective on demurrer for the rea-
of time for collecting such debts had sons stated in the opinion. The first
been obtained, they are, at the expira- paragraph of the answer was good,
tion of said three years, totally extin- with the exception that it should have
guished. Conwell v. Pattison, 28 Ind. stated that the corporation came to an
509. In this action, plaintiff, as presi- end by some legal process. The third
dent of a bank, brought suit against paragraph was defective for failure to
the defendant as indorser of two bills properly set up false representations,
of exchange. Demurrer to the com- False representations upon which fraud
plaint was overruled and defendant can be predicated must show existing
filed his answer consisting of three facts or facts alleged to have existed at
paragraphs. The court held that the the times, and not the promises to be
fourth paragraph of the answer was performed in the future. The answer
well pleaded and contained a valid might be readily corrected in accord-
defense, and therefore judgment for ance with the decision and used as a
the defendant was proper. good pleading.
An answer in a suit on a promissory 3. The words in [ ] are not found in
note executed to a corporation, brought the reported case, but have been added
by the payee setting up that the cor- to make the form complete.
752 Volume 5.
6473. CORPORATIONS. 6473.
which time said bank ceased, to exist for any purpose whatever, and
had no legal capacity thenceforward to sue or be sued, or to transact
any business whatever, having forfeited its charter and all powers
under it.
And the defendant says that Abraham B. Conwell^s president of
said bank, has no legal capacity whatever to maintain this suit, in
behalf of, or for the use of said bank, for the reason that, at the time
of the commencement of said suit, said bank had no legal existence.
Wherefore, they claim judgment for costs.
[Jeremiah Mason, Defendant's Attorney.
(Verification.)*} 2
b. Against Corporation. 3
(1) COMPLAINT. 4
BY LESSOR AGAINST DISSOLVED INSOLVENT CORPORATION.
Form No. 6473.*
State of Minnesota, \ District Court,
Hennepin County, \ Fourth Judicial District.
Robert C. Kalkhoff and [John Doe\, plaintiffs,
against
B. F. Nelson, as receiver 'of Thomas H.
Bishop 6 Co., defendant.
The plaintiffs above named complain of the defendant above
named and say:
1. That the James H. Bishop & Company was on the first day of
May, i891, and ever since has been a corporation organized under
the laws of this state.
2. That on that day it and the plaintiff duly made and delivered
each to the other a lease of the premises described in the complaint'
in this action, then and now owned by the plaintiff, whereby they
leased the premises to the corporation for the term of ten years, for
the reserved rent of six thousand dollars for each year, payable five
hundred dollars monthly in advance, on the first day of each and every
month, which rent the corporation covenanted so to pay to them,
and to surrender up the premises at the end of the term in good
repair. That said corporation went into possession of the premises
under the lease, and paid the monthly instalments of rent up to and
including the first day of January, i%94, but the five hundred 'dollars
1. Consult the title VERIFICATIONS. 5. Liability for Bent. By the disso-
2. The words in [ ] are not found in lution the corporation became unable
the reported case, but have been added to pay the sums due on a lease extend-
to make the form complete. ing beyond its dissolution, and by such
3. Proceeding! by and against corpora- breach a cause of action immediately
tions, generally, see supra, note i, accrued to the lessors for the recovery
p. 527. of all damages, present and prospec-
4. For formal parts of complaints, tive. Kalkhoff v. Nelson, 60 Minn,
generally, consult the title COMPLAINTS, 284.
vol. 4, p. 1019.
5 E. of F. P. 48. 753 Volume 5.
6474. CORPORATIONS. 6474.
rent due and payable on the first day of February, iS94, has never
been paid. That on the seventh day of February, i894, upon the
petition of stockholders, the corporation, which was then insolvent,
was dissolved by the District Court of Hennepin county, and the
respondent appointed receiver, pursuant to the provisions of Gen.
Stat. (1878), c. 34, tit. 8 (Gen. Stat. 1894), 3391-3436.
3. That the receiver occupied the premises from said date until
the fifth day of June, iB94, for the purpose of taking possession and
disposing of the merchandise of the corporation in the building
thereon, when he vacated the premises, and attempted to surrender
them to the plaintiffs, who refused to accept the attempted sur-
render, and they notified the receiver that they would not do so,
but that if he insisted on abandoning the said premises they would
rent them for the best prices obtainable, at the risk of the lessee;
and that if such prices would not equal what they were entitled to
from him as receiver of the said company they would charge the
same to him as receiver of the said company. That the plaintiffs
were in fact unable to rent the said premises, and they thereafter
demanded from the said receiver the damages sustained by reason
of the breach of the covenant of the lessee to pay rent at the stipu-
lated rate for the full term of the lease; for damages for the breach
of the covenant to keep the premises in repair; and for the sum of
five hundred dollars, being rent due for February, iS94- But said
receiver and defendant herein then refused and still refuses to allow
said claims.
Wherefore plaintiff asks judgment against the defendant:
(1) For damages sustained by reason of the breach of the covenant
of the lessee to pay rent at the stipulated rate for the full term of
the lease;
(2) For damages for a breach of the covenant to keep the premises
in repair;
(3) For five hundred dollars rent due on the first day of February,
i894, and for their costs.
Oliver Ellsworth, Plaintiff's Attorney.
( Verification^-
(2) PETITION 2 OF CREDITORS. 3
(a) To Declare Trust on Corporate Property.
Form No. 6474.*
State of Kansas, \
Wyandotte County, j
In the District Court in and for the county and state aforesaid:
1. Consult the title VERIFICATIONS. 4. This petition is based on the facts in
2. For the formal parts of petitions or Chicago, etc., Bridge Co. v. Fowler, 55
complaints, generally, consult the title Kan. 17, in which case the court held
COMPLAINTS, vol. 4, p. 1019. that the plaintiff was entitled to the re-
3. Creditors' suits, for forms relating to. lief prayed for.
generally, consult the title CREDITORS'
SUITS, post, p. 874.
754 Volume 5.
6474. CORPORATIONS. 6474.
The Chicago and Atchison Bridge Company, plaintiff, 1
against
The Anglo-American Packing and Provision Com- > Petition.
pany, George Fowler, Alexander Muir and Arthur
Booth, defendants.
The plaintiff states that, on the tu>enty-fifth day of June, iS85, it
obtained a judgment against the defendant, the Anglo-American
Packing and Provision Company, in the United States Circuit Court, for
three thousand four hundred and four dollars and seventy-four cents;
that an execution was issued upon the judgment and placed in the
hands of the United States marshal, who, on the sixth day of December,
i887, levied upon certain real estate in Wyandotte county as the
property of the said Anglo-American Company. {Here follows a
description of said property?) That said Anglo-American Packing and
Provision Company was organized on the nineteenth day of November,
i87#, with a capital stock of one hundred and fifty thousand dollars, of
which George Fowler was appointed the general manager, which posi-
tion he continued to occupy until shortly before the rendition of the
judgment in favor of plaintiff herein on the twenty-fifth day of June,
i&&5, and that, as such manager, he had knowledge of the indebted-
ness of the Anglo-American Company to the plaintiff herein, and was
fully aware that the latter had not been paid. That, on the thirtieth
day of May, i885, the sdid Anglo-American Packing and Provision
Company, by its officers, made a deed of conveyance pretending to
convey all of the real estate in question, and above referred to, to
Gej-ge Foivler, for a pretended consideration of five hundred and
eighty thousand dollars; that the conveyance was made for the pur-
pose of defrauding the creditors of the said Anglo-American Company,
and especially the plaintiff herein. That there was no consideration
for the said transfer, and that the pretended indebtedness of the
Anglo-American Company to the said Fowler, claimed to be a con-
sideration, was fraudulent and fictitious. That, at the time of the
transfer, the Anglo-American Company had no other property or
assets, except that included in the transfer, and that the said George
Fowler, defendant herein, accepted the conveyance for the purpose
of carrying out the fraudulent intent and purpose of placing the
property beyond the reach of the plaintiff and other creditors. That,
shortly after the deed above referred was made, the said George
Fowler conveyed the property in question to Alexander Muir and
Arthur Booth, defendants herein, which conveyance was placed on
record without any consideration whatever passing from the said
Muir and Booth to either Fowler or the said Anglo-American Companv.
That the plaintiff herein did not discover the above fraudulent trans-
action until within twelve months before the bringing of this action.
That the said Anglo-American Company is insolvent, and that, since
the transfer of its property and assets, as is above set forth, it has
ceased to do business, and has practically abandoned its corporate
rights and privileges. That said judgment now amounts to, inclu-
ding interest and costs, the sum of three thousand seven hundred and
sixty-eight dollars and sixty-four cents.
Wherefore plaintiff prays judgment that the property should be
T.JO Volume 5.
6475. CORPORATIONS. 6475.
adjudged to be that of the Anglo-American Packing and Provision
Company, and that George Fowler, defendant herein, be held to have
received and held the property in trust for the benefit of the cred-
itors of the said Anglo-American Company, and that the same shall be
subject to the payment of said judgment.
And plaintiff further prays that, in case the property cannot be
subjected to the payment of said judgment, the said George Fowler
shall be required to account for the full value of the property up to
the amount necessary to pay the judgment, and that the plaintiff
herein have judgment against him for the sum of three thousand seven
hundred and sixty-eight dollars and sixty-four cents, and for its costs.
Oliver Ellsworth, Attorney for Plaintiff.
( Verification. )*
() To have Sole Remaining Officer Act as Trustee for Creditors.
Form No. 6475.*
John C. Moore and (naming others), "j In the Circuit Court of Missis-
plaintiffs, I sippi County, State of Mis-
against j souri.
George W. Whitcomb, defendant. J To the October Term, i870.
The plaintiffs state that, by an act of the legislature of the state of
Missouri, approved February 19, 1866, entitled "An Act to provide
for the sale of certain railroads and property by the governor, to
foreclose the State's lien thereon, and to secure the early completion
of the Southwest Branch Pacific, the Platte Country, the St. Louis &
Iron Mountain, and the Cairo & Fulton railroads of Missouri," the
charter of said corporation was repealed, and the government of the
state of Missouri, by which the same was granted, reclaimed, seized
and took possession of the franchises of said corporation, and to-
gether with the road, rolling stock and other property of said cor-
poration, on the first day of October, 1866, sold said franchises,
whereby said corporation, on the day and year aforesaid, became and
is dissolved.
Plaintiffs further state that said corporation failed to complete its
railroad; that the same is in an unfinished condition and abandoned;
that the same has become dilapidated and gone to waste, and that
the corporation has not kept up or maintained its corporate exist-
ence, or had or held a legal election for officers thereof since the
election held in i&61; and that the present defendant is the only
surviving of the officers of said dissolved corporation qualified under
the constitution and laws of this state to act as a trustee of the
property thereof.
Wherefore plaintiffs pray that the defendant may be directed to
act as a trustee of the property of said company for all persons inter-
ested in the distribution of the assets of said company.
Oliver Ellsworth, Attorney for Plaintiffs.
1. Consult the title VERIFICATIONS. suit the statute relating to trustees of
2. This petition is based on the facts in dissolved corporations, Mo. Rev. Stat.
Moore v. Whitcomb, 48 Mo. 543. Con- (1889), 2513.
756 Volume 5.
COSTS.
BY W. R. BUCKMINSTER.
I. SECURITY FOR COSTS, 759.
i. The Affidavit, 759.
a. In Support of Motion, 759.
(1) In General, 759.
(a) Plaintiff a Nonresident, 759.
aa. Generally, 759.
bb. Where Plaintiff Removes After Com-
mencement of Suit, 762.
cc. Foreign Corporation, 762.
(b) Plaintiff an Administrator, 763.
(<) Plaintiff a Trustee of an Express Trust, 764.
(</) Plaintiff Unable to Pay Costs, 765.
(2) Where there has been Delay in Applying for Se~
curity, 766.
(3) For Additional Security, 767.
b. In Opposition to Motion, 768.
(1) By an Administrator, 768.
(2) By a Poor Plaintiff, 768.
9. The Motion, 769.
a. Notice of Motion, 769.
b. Order to Show Cause, 770.
f. Motion, 770.
3. The Order, 771.
a. Generally, 771.
b. For Stay of Proceedings Unless Security is Filed, 772.
c. To File Security or Shou> Cause, 773.
4. The Bond, Undertaking, or Recognizance, 773.
a. In Civil Cases, 773.
(1) Generally, 773.
(a) In Courts of Record, 773.
() / Justice's Court, 783.
(2) / Election Contest, 784.
. / Criminal Cases, 785.
5. Notice of Security Filed, 786.
6. Dismissal for Failure to Give Security, 786.
a. Affidavit in Support of Motion, 786.
. Notice of Motion, 787.
r. Motion, 787.
</. 7^ CWrr, 787.
(i) Dismissing Suit, 788.
() 6W<rr Nisi, 788.
() Absolute Order, 788.
757 Volume 5.
COSTS.
(2) Denying Motion Where Security is Filed After
Expiration of Time, 789.
II. SUITS IN FORMA PAUPERIS, 790.
i. Application for Leave to Sue, 790.
a. In General, 790.
b. Where Application is First Made on Appeal, 795.
c. Upon Claim for Tax Seizure, 795.
8. Order, 796.
a. Of Reference, 796.
b. Granting Leave to Sue, 796.
c. Denying Leave to Sue, 797.
d. Annulling Leave to Sue, 798.
III. TAXATION, 798.
i. In General, 798.
a. Notice of Taxation, 798.
b. Proof of Right to Tax, 800.
(1) Certificate of Judge, 800.
(2) Affidavits, 800.
(a) By Attorney, of Costs and Disbursements, 800.
(b) By Referee, for Reference Fees, 803.
{/) By Witness, for Travel Fees, 803.
c. Objection to Items, 804.
(1) Notice to Clerk, 804.
(2) Certificate of Clerk, 805.
a. Relaxation, 805.
a. Where Costs have been Taxed Without Notice, 806.
(1) Notice, 806.
(2) Affidavit for Order to Show Cause, 806.
(3) Order to Show Cause, 807.
b. Where Items have been Allowed or Refused, 807.
(1) Affidavit, 807.
(2) Notice of Motion, 807.
(3) Motion, 808.
(#) In General, 808.
(<) ^?r Relaxation and Forfeiture of ClerKs
Fees, 809.
(4) Order, 809.
. Where Items have been Omitted, 810.
(1) Motion, 810.
(2) Order, 811.
IV. ADDITIONAL ALLOWANCE, Sn.
1. Notice of Motion, 811.
2. Certificate of Referee, 812.
3. Affidavits, 813.
#. / Support of Motion, 813.
. / Opposition to Motion, 813.
4. Order, 814.
V. AWARD OF COSTS, 814.
i. Against Parties, 814.
a. Plaintiff, 814.
. Defendant, 815.
758 Volume 5.
6476. COSTS. 6476.
*. Against Persons not Parties, 815.
a. Attorney, 815.
(1) For Nonresident Plaintiff, 815.
(2) Where Scandalous and Impertinent Matter is
Stricken Out, 816.
b. Against Executor, Assignee or Trustee, 817.
(1) Certificate of Judge, 817.
(2) Order, 817.
c. Against Person Beneficially Interested, 818.
(1) Affidavit in Support of Motion, 818.
(2) Notice of Motion, 819.
(3) Order, 819.
d. Motion against Security for Costs of Interv enors, 820.
e. Against Prosecutor in Criminal Action, 821.
VI. ACTION TO RECOVER COSTS AGAINST PARTY DISCONTINUING
ACTION, 822.
VII. NOTICE TO RECOVER ILLEGALLY EXACTED COSTS, 823.
CROSS-REFERENCES.
for Forms of Bonds and Undertakings for Costs on Appeal, see the title
BONDS AND UNDERTAKINGS ON APPEAL AND
ERROR, vol. 3, p. 833.
For Forms of Bonds for Costs upon Removal of Actions from One Court
to Another, see the title REMOVAL OF CAUSES.
For Forms of Executions for Costs, see the title EXECUTIONS.
For Forms of Orders allowing Amendment upon Payment of Costs, see the
title AMENDMENTS, vol. i, pp. 751, 752.
For Forms of Stipulations for Costs in Admiralty, see the title ADMI-
RALTY, vol. i, pp. 463-465.
See also the GENERAL INDEX to this work.
For matters of Substantive Law connected with the subject of Costs, see the
title COSTS, 4 AMERICAN AND ENGLISH ENCYCLOPEDIA OF
LAW (2d ed.), p. 313.
For matters of Pleading and Practice connected with the subject of Costs,
see the titles COSTS, 5 ENCYCLOPEDIA OF PLEADING AND
PRACTICE, p. 100; ADDITIONAL ALLOWANCE, i EN-
CYCLOPEDIA OF PLEADING AND PRACTICE, p. an.
I. SECURITY FOR COSTS.
1. The Affidavit. 1
a. In Support of Motion.
(i) IN GENERAL.
(a) Plaintiff a Nonresident.
aa. GENERALLY.
1. For forms of affidavits, generally, consult the title AFFIDAVITS, vol. t, p. 548.
759 Volume 5.
6476.
COSTS.
6476.
Form No. 6476.'
Supreme Court, City and County of New York.
John Doe, plaintiff,
against
Richard Roe, defendant.
City and County of New York, ss.
Joseph Story, being duly sworn, deposes and says:
I. That he is the attorney 2 for the defendant in the above entitled
action.
II. That said action was begun on the fourth day of May, i897,
by the service of a summons and complaint on the defendant herein, f
1. This affidavit is drawn under N.
Y. Code Civ. Proc., 3268 (Birds. Rev.
Stat. (1896), p. 717, 63), but with
change of caption will answer for the
following states, to wit:
Alabama. Civ. Code (1886), 2858.
Arkansas. Sand. & H. Dig. (1894),
78i.
Arizona. Rev. Stat. (1887), 906.
California. Code Civ. Proc. (1897),
1036.
Colorado. Mills' Anno. Stat. (1891),
675-
Idaho. Rev. Stat. (1887), 4915.
Illinois. Starr & C. Anno. Stat.
(1896), p. 1064, par. i.
Indiana. Homer's Stat. (1896),
589-
Kentucky. Bullitt's Civ. Code (1895),
616.
Maryland. Pub. Gen. Laws (1888),
art. 24, 9.
Minnesota. Stat. (1894), 5518.
Missouri. Rev. Stat. (1889),
2915.
Montana. Code Civ. Proc. (1895),
1871.
Nebraska. Comp. Stat. (1897),
6208.
Nevada. Gen. Stat. (1885), 3510.
New Jersey. Gen. Stat. (1895), p.
2593, par. 348.
New Mexico. Comp. Laws (1884),
1843-
North Dakota. Rev. Codes (1895),
5597.
Ohio. Bates' Anno. Stat. (1897),
6701.
Oklahoma. Stat. (1893), 4833.
Oregon. Hill's Anno. Laws (1892),
2062.
Rhode Island. Gen. Laws (1896), c.
247, 3-
South Carolina. Rules of Practice
for Circuit Courts, Rule X.
South Dakota. Dak. Comp. Laws
(1887), 5207.
Tennessee. Code (1896), 4926,
4927-
Texas. Rev. Stat. (1895), art. 1440.
Utah. Rev. Stat. (1898), 3354,
3355-
Washington. 2 Hill's Anno. Stat.
(1891), 844.
Wisconsin. Sanb. & B. Anno. Stat.
(1889), 2943.
Wyoming. Rev. Stat. (1887), 2688.
In all states except New York it is
advisable to add a clause to the affidavit
which shall state that the defendant
has a good defense to the action, specify
it, and suggest that it is probable that
a judgment for costs will be recorded
against the plaintiff in favor of the de-
fendant. This should certainly be
done whenever the appeal is to the
discretion of the court.
Security is also required in the follow-
ing states before the clerk will issue
process in favor of a nonresident, to
wit:
Connecticut. Gen. Stat. (1888), 896.
District of Columbia Comp. Stat.
(1894), p. 310, 12, p. 446, 30.
Kansas. Gen. Stat. (1889), 4682.
Maine. Rev. Stat. (1883), c. 81, 6.
Massachusetts. Pub. Stat. (1882), c.
161, 24.
Michigan. How. Anno. Stat. (1882),
7296.
Mississippi. Anno. Code (1892),
86*.
New Jf amps hire. Pub. Stat. (1891),
c. 218, 8.
North Carolina. Code Civ. Proc.
(1891), 209.
Pennsylvania. Bright. Pur. Dig.
(1894), p. 1131, 53.
Vermont. Stat. (1894), 920-925,
1066. These sections apply to residents
as well as nonresidents.
2. Who may Make. The affidavit
may be made by any one familiar with
the facts. 2 Wait's Prac. 573.
760
Volume 5.
6477. COSTS. 6477.
That no answer has been served and that the time to answer has not
yet expired.*
III. That the plaintiff is not, 1 and at the time of the beginning of
this action was not, a resident of the state of New York, but resides,
and then resided, in the state of New Jersey.
IV. That no previous application for an order requiring the plain-
tiff to file security for the costs, or for an order to show cause why
he should not be compelled to file such security, has been made in
this action.
V. That the reason why an order to show cause why the plaintiff
should not be compelled to file security for the costs, and why the
defendant should not have such other further relief as may be
necessary, is sought, is because (Here state the reason why the motion
cannot be regularly noticed for the motion day. ) 2
Joseph Story.
Sworn to before me this tenth day of May, iS97.
Abraham Kent,
Notary Public, New York County.
Form No. 6477.'
In the District Court in and for Polk County, Iowa.
John Doe, plaintiff,
against
Richard Roe, defendant.
State of Iowa,
Polk County.
I, Richard Roe, being first duly sworn, say that I am the defendant
in this action ; that I have a good defense to the whole of this action
'"' I ss
r. f
1. Section 3268 of the New York an order to show cause, paragraph IV
Code (Birds. Rev. Stat. (1896), p. 717, is required by Hun's Ct. Rules (1896),
63) requires merely that the plaintiff No. 25, and paragraph V by Hun's Ct.
should have been a nonresident at the Rules (1896), No. 37. These para-
commencement of the action. Ambler graphs of the form are drafted to meet
v. Ambler, 8 Abb. Pr. (N. Y. Supreme the New York rules of court. They
Ct.) 340. But it is usual to add a state- are not necessary except in states
ment as to present residence. where the court rules specially require
Security for costs on the ground of such clauses in affidavits for ex parte
nonresidence is not required unless all motions and applications for orders to
the plaintiffs are nonresidents. N. Y. show cause.
Code Civ. Proc., 3270 (Birds. Rev. 3. Iowa. Code (1897), 3847. The
Stat. (1896), p. 718, 65); Sims v. Bon- affidavit need not set out the facts Con-
ner, 60 N. Y. Super. Ct. 63. stituting the defense, but only that the
In an action brought by a nominal party filing it has a good defense. D.
party for the use of another the affidavit M. V. Live Stock Ins. Co. v. Hender-
supporting a motion for security must son, 38 Iowa 446.
deny the solvency of the cestui qui use Delaware. The provisions of the
and his residence within the jurisdic- Delaware statute are substantially the
tion. O'Connell v. Rea, 51 111. 306. same, save that the affidavit must state
2. If an absolute order is sought by that the defense is to the whole action,
notice for the regular motion day, an and must state the nature and character
order to show cause becomes unneces- of the defense. Del. Rev. Stat. (1893),
sary and paragraphs IV and V maybe p. 791, 8.
omitted. As an ex parte application for
761 Volume 5.
6478. COSTS. 6480.
(or to a certain part of the action, stating what part), and that the plain-
tiff is a nonresident of this state.
Richard Roe.
Subscribed and sworn to before me \ti\sfirst day of July, iS96.
Abraham Kent,
Notary Public, Polk County.
Form No. 6478.'
State of Mississippi, ) In Chancery Court,
De Soto County. } October Term, A. D. i897.
John Doe }
against V No. 212.
Richard Roe. )
Personally appeared before me, the undersigned, a justice of the
peace of said county, John Hancock, clerk of the Chancery Court of
the county aforesaid, who, on oath, says:* That the complainant in
the above styled case is a nonresident of the state of Mississippi, and
has not, as he believes, sufficient property in said state out of which
the costs can be made if adjudged against him.
John Hancock, Clerk.
Sworn to and subscribed before me this the sixth day of October,
A. D. 1 857. Abraham Kent, J. P.
bb. WHERE PLAINTIFF REMOVES AFTER COMMENCEMENT OF SUIT.
Form No. 64 7 p. 9
(Commencing as in Form No. 6476, and continuing down to *.)
III. That since the beginning of this action and about the month
of March last, the plaintiff in this action removed 3 from this state to
the state of New Jersey, with the intention of there permanently
residing. That he has ceased to be a resident of this state and that
he is not within the jurisdiction of this court, but resides at Newark
in the state of New Jersey.
IV. (Concluding as in Form No. 6476.)
/
cc. FOREIGN CORPORATION.
Form No. 6 4 8 o . 4
(Commencing as in Form No. 6476, and continuing down to *.)
1. Mississippi. Anno. Code (1892), Iowa. Code (1897), 3849.
862. Massachusetts. Pub. Stat. (1882), c.
2. New York. Code Civ. Proc., 167, 30.
3269 (Birds. Rev. Stat. (1896), p. 718, Missouri. Rev. Stat. (1889),
64). 2916.
Similar provisions exist in nearly all 3. Actual, not intended removal is
the states. See the list of statutes cited meant. Morton v. Domestic Tel. Co.,
supra, note i, p.. 760, and also the i Abb. N. Cas. (N. Y. Supreme Ct.)
statutes following, to wit: 290.
Alabama. Civ. Code (1886), 2861 4. See statutes cited supra, note I,
Illinois. Starr & C. Anno. Stat. p. 760.
(1896), p. 1067, par. 4.
762 Volume 5.
6481. COSTS. 6481.
III. That the plaintiff herein is a foreign corporation incorporated
under the laws of the state of New Jersey.
IV. (Concluding as in Form No. 6476.)
(l>) Plaintiff an Administrator.
Form No. 6481.'
Supreme Court, City and County of New York.
John Doe, as administrator of the estate
of Richard Styles, deceased, plaintiff,
against
Richard Roe, defendant.
City and County of New York, ss.
Joseph Story, being duly sworn, says:
I. That he is the attorney for the defendant in this action.
II. That the plaintiff is the duly appointed administrator of the
goods, chattels and choses in action of Richard Styles, deceased,
being appointed by the surrogate of Albany county on the third day
of January, iS94-
III. (Here state the cause of action and the present condition of the
same.)
IV. (Here state costs already accrued and likely to accrue.}
V. Upon information and belief that plaintiff's intestate left no
estate and that said letters of administration were taken out only to
prosecute a claim for damages in causing his death.
VI. That the complaint herein, a copy of which is hereto annexed
and made a part of this affidavit, is made only on information and
belief, of which information the sources are not given.
VII. Upon information and belief that intestate's death was caused
by his own negligence and that the sources of information and
belief are the affidavits of Samuel Short, verified on the third day of
April, i894, and of William West, verified on they?/M day of April,
which affidavits are herewith submitted. 2
1. New York. Code Civ. Proc., cient statements. The merits t>f the
3271 (Birds. Rev. Stat. (1896), p. 718, action as shown in the complaint are
66). always to be considered in like manner
The order for security for costs as if the plaintiff had applied to sue in
against an executor must be upon forma pauperis, and if a prima facie
notice or by order to show cause. An cause of action appears in the corn-
er />ar/^ order if granted will be vacated. plaint the court will refuse security.
Swift v. Wheeler, 46 Hun (N. Y.) 580. Rutherford v. Madrid, 77 Hun (N. Y.)
The same rule applies to an order 545. And a sworn complaint present-
against plaintiff as receiver. Ridgway ing prima facie a good cause of action is
v. Symons, 25 Civ. Proc. Rep. (N. Y. reason for refusing application for
Supreme Ct.) 23. security. Schmidt v. Eiseman,6 Misc.
2. Paragraphs V, VI and VII are Rep. (N. Y. Brooklyn City Ct.) 264;
adapted from the facts in Caccavo v. Fessenden v. Blanchard, 14 Civ. Proc.
Rome, etc. R. Co., 59 N. Y. Super. Ct. Rep. (N. Y. Supreme Ct.) 277, 48 Hun
129, in which it was held a proper case (N. Y.) 350.
was made out for the exercise of the A statement that the estate has no
court's discretion. assets except the claim in litigation is
But personal irresponsibility and in- not a cause requiring security. Ryan
solvency of estate alone are not suffi- v. Potter, 2 McCarty (N. Y.) 33.
763 Volume 5.
6482. COSTS. 6482.
VIII. Upon information and belief that defendant, in case he is
successful in this action, will not be able to collect out of decedent's
estate the costs herein. That the sources of deponent's information
and belief are (naming them).
IX. That said deponent is informed and verily belives that this
action is not commenced in good faith by said plaintiff, but is in bad
faith and improperly begun and continued. 1
X. That said deponent is informed and verily believes the plain-
tiff is irresponsible and insolvent, and that if successful in this action
deponent will not be able to collect from the plaintiff the costs herein,
and that the sources of his information and belief are (naming them).
(Signature and Jurat as in Form No. 6476.)
(<:) Plaintiff a Trustee of an Express Trust.
Form No. 6482."
Supreme Court, City and County of New York.
John Doe, as trustee for Jacob Wirth
and Alfred Case, plaintiff,
against
Richard Roe, defendant.
City and County of New York, ss.
Joseph Story, being duly sworn, deposes and says:
I. That he is the attorney for the defendant in this action.
II. That prior to the commencement of this action, one Lewis
Case, who is not now within the state, claimed to have a cause of
action to recover damages against the defendant for a tort alleged
1. Where security is required under Mason, 86 Hun (N. Y.) 500, it was held
section 3271 pf the New York Code of that in an action brought by a receiver,
Civil Procedure it will be granted only administrator, etc., the plaintiff will
in the discretion of the court. Under not be required to give security for costs
the old code, in Wilbur v. White, 56 unless it is shown, " in addition to the
How. Pr. (N. Y. Supreme Ct.) 321, fact of insolvency," that the action was
where the allegation in the affidavit was brought in bad faith or heedlessly or
" that there are not funds belonging to that the plaintiff will not probably
the bankrupt's estate represented by succeed.
him sufficient to pay said costs if de- 2. This form is drawn under N. Y.
fendant succeeded in the action," it Code Civ. Proc , 3271 (Birds. Rev.
was held that the allegation was not Stat. (1896), p. 718), 66, and is based
sufficient without a further allegation on the facts in Fish v. Wing, i Civ.
of bad faith or mismanagement in the. Proc. Rep. (N. Y. Supreme Ct.) 231, in
.prosecution of the action. Under the which case it was held that a plaintiff
new code, however, in Tolman v. Syra- suing as a trustee of an express trust
cuse, etc., R. Co., 92 N. Y. 353, it was will be required to file security for costs
held that the court had power in its when one of the beneficiaries is a non-
discretion to require security from an resident of the state, and the other is
administratrix although the affidavit an infant whose guardian ad litem has
contained no allegation of mismanage- not filed such security, and that the
ment or bad faith. But if the allega- former rule under section 317 of the
tion is not made, other reasons must be Code of Procedure, requiring proof of
shown for the exercise of the discretion bad management or bad faith before
of the court. The court will not act such trustee will be required to file
merely because the estate is insolvent, security, has not been retained in the
Fagan v. Strong, 19 Civ. Proc. Rep. present revision. See also Swift v.
(N. Y. Supreme Ct.) 88. So in Hale v. Collins, I Den. (N. Y.) 659.
764 Volume 5.
6483. COSTS. 6483.
(Here specify). That the said Lewis Case, still prior to the commence-
ment of this action, transferred and assigned said cause of action to
John Doe, the plaintiff herein, in trust, however, to collect it and
to pay over the sum collected to one Jacob Wirth, a nonresident, and
to Alfred Case, the minor son of said Lewis Case, in certain specified
proportions.
III. That by virtue of said assignment said John Doe brings this
action as express trustee for the persons above mentioned.
IV. Upon information and belief that the plaintiff is insolvent and
that if the defendant shall succeed in this action he will be unable to
secure payment of his costs from said plaintiff.
V. That the source of deponent's information as to those portions
of this affidavit which are stated to be made on information and belief
is investigation which deponent has personally made in execution of
his duties as attorney for the defendant in this cause.
{Signature and jurat as in Form No. 6476. )
(</) Plaintiff Unable to Pay Costs.
Form No. 6 4 8|3 .
(Precedent in Hamilton v. Dunn, 22 111. 259.)'
[In the Cook County Circuit Court. 2
James Hamilton }
ats. V
Patrick Dunn. )
State of Illinois, \ 3
County of Cook. \ SS 'J
James Hamilton personally appears, and being first duly sworn
1. Illinois. Starr & C. Anno. Stat. claimed by them as heirs, nd where it
(1896), p. 1067, par. 4. The affidavit in appeared from the report of the referee
this case, however, was defeated, by that the estate was amply sufficient to
the counter affidavit to be found infra, meet all charges, it was held error for
Form No. 6488, the court saying, " The the circuit court to dismiss the case on
rule upon the plaintiff to show cause motion for want of security for costs
why he should not give security for and upon proof merely that the plain-
costs was properly discharged by the tiffs possessed no other property sub-
court on the counter affidavit of the ject to execution. The proof should
plaintiff; that should have as much have been made that the plaintiffs were
weight with the court as the defend- likely to become ultimately liable for
ant's affidavit. Such motions in such costs. Whitsett v . Blumenthal.63 Mo.
cases are not regarded in a very favor- 479. See Knight v.. Fisher, 15 Colo,
able light by courts, the object being 177, holding that the affidavit must pre-
most generally procrastination and de- sent a case which appeals to the dis-
lay. Slight evidence has been usually cretion of the court, and Starr & C.
held sufficient to discharge such rule." Anno. Stat. 111. (1896), p. 1067, par. 4;
Where security for costs is sought Mo. Rev. Stat. (1889), 2916.
because the plaintiff would be unable 2. The proceedings in this case were
to pay them if awarded against him, actually had in the Cook county court
the rule should not be granted unless of common pleas.
it appears that there is probability that 3. The words enclosed by [ ] will not
costs will be so awarded against the be found in the reported case, but
plaintiff. Where the plaintiffs were have been added to render the form
suing to recover a valuable tract of complete,
land with rents and profits, which was
765 Volume 5.
6484. COSTS. 6485.
deposes and says that he is the defendant in the above entitled suit;
that he is well acquainted with, and has, for some months past, well
known the said Patrick Dunn, the plaintiff in said suit, personally
and by reputation. That the said Patrick Dunn, according to his
own statements and admissions made to this affiant on or about the
first day of December last past, was, and according to the best of his,
this affiant's, knowledge, information and belief, still is, utterly insol-
vent, and has no goods, estate or effects liable to execution, wherefrom
such costs or any part thereof, as the said Patrick Dunn may be decreed
or adjudged to pay in the above entitled cause, can be made, levied
or satisfied. This affiant further says that he has, or he is informed
by his counsel and verily believes, a good, full and sufficient defense
to the above entitled suit on the merits thereof, and that his pro-
ceedings in this behalf are not in any manner interposed or intended
to delay or retard the trial of the same. This affiant therefore prays
that a rule may be entered in the above entitled cause, requiring the
said Patrick Dunn, within such time as the court, in its discretion,
shall see fit, to file good and sufficient security for such costs as may
accrue therein, and in default thereof, that said suit may be dis-
missed, according to the form, force and effect of the statute in such
case made and provided.
[(Signature and jurat as in Form No. 6476. )] x
Form No. 6484."
(Commencing as in Form No. 6478, and continuing dmvn to *.) That
he has good reason to believe, and does believe, that the complainant
in the above styled case, though a resident of said state, cannot be
made to pay the costs of the said suit in case the same shall be
adjudged against him.
(Signature and jurat as in Form No. 6478.)
(2) WHERE THERE HAS BEEN DELAY IN APPLYING FOR SECURITY.
Form No. &4&S. 3
(Title of court and cause, and venue as in Form No. 6476.)
Richard Roe, being duly sworn, deposes and says:
I. That he is the defendant in this action.
II. That he is not personally acquainted with the plaintiff and had
1. The matter to be supplied within 169; Teal v. Yost, 16 Civ. Proc. Rep.
[ ] will not be found in the reported (N. Y. Super. Ct.) 367; Schwartz v.
case. Scott, 25 Civ. Proc. Rep. (N. Y. Su-
2. Mississippi. Anno. Code (1892), preme Ct.) 53.
862. Indiana. A rule of court provides
3. Security for costs under section that "motions to require security for
3268 of the New York Code (Birds. Rev. costs must be made at the first calling
Stat. (1896), p. 717, 63) can be required of the docket, unless the affidavit upon
only if there is due diligence in applica- which the motion is based shows that
lion therefor. Such application should the plaintiff's nonresidence was not
be made before answer, and any subse- known to the defendant or his attorney,
quent delay must be excused by facts and that it is made as soon as the fact
stated in the affidavit. Stevenson v. of such nonresidence comes to his
New York, etc., R. Co., 49 Hun (N. Y.) knowledge. When the motion is sus-
766 Volume 5.
6486. COSTS. 6486.
no knowledge or belief that said plaintiff was a nonresident until the
seventeenth day of May,'iS97, when the fact that at the commence-
ment of this action said plaintiff was and now is a nonresident was
discovered (or became know/t) to the defendant.
III. That (Here state hcnv the fact became known -to Aim, so confirming
his previous lack of knou>ledge. )
(Signature and jurat as in Form No. 6476.)
(3) FOR ADDITIONAL SECURITY.
Form No. 6486.'
(Commencing as in Form No. 6476, and continuing down to f) that
(Here state what has happened in the case and itemize as far as possible the
expenses which have been and will be incurred), and that said costs and
disbursements will greatly exceed the sum of two hundred and fifty
dollars.
III. That the plaintiff is and always has been a nonresident of the
state of Ne^i^ York, residing, as deponent is informed and believes, in
Jersey City, New Jersey.
IV. That on the fourth day of May, iS97, complying with the de-
mands of the defendant's attorney (or an order of the court specifying
/'/), the plaintiff's attorney filed an undertaking for the defendant's
costs in the sum of two hundred and fifty dollars. That after the
costs in the action had greatly increased and threatened still further
greatly to increase, deponent often requested said attorney for the
plaintiff to file additional security for costs in this action, but this,
said attorney has neglected and refused to do.
tained, the plaintiff will be required to Illinois. Starr & C. Anno. Stat.
file the undertaking for costs on the (1896), p. 1067, par. 4. The court can-
following day." Pancoast v. Travelers' not require additional security unless
Ins. Co., 79 Ind. 174. some change in the circumstances of
1. Additional security for costs may the plaintiff or his security is shown,
be required " at any time after the al- Ball v. Bruce, 27 111. 332.
lowance of an undertaking for costs" Iowa. Code (1897). 3850.
upon proof "that the sum specified in Kansas. Gen. Stat. (1889), 4685.
the undertaking is insufficient." N. Y. Kentucky. Bullitt's Civ. Code(i895),
Code Civ. Proc., 8 3276 (Birds. Rev. 620.
Stat. (1896), p. 719, 71). The language Michigan. How. Anno. Stat. (1882),
of the code, however, does not give the 7299.
right to require additional security Minnesota. Stat. (1894), 5518.
where the plaintiff has paid money into Missouri. Rev. Stat. (1889), 2915.
court instead of filing an undertaking. Montana. Code Civ. Proc. (1895),
Newhall v. Appleton, 57 N. Y. Super. 1871.
Ct. 154. Nebraska. Comp. Stat.(i897\ 6211.
Additional security for costs is pro- Nevada. Gen. Stat. (1885), 3510.
vided for also by the express words of North Dakota. Rev. Codes (1895),
the statutes in the following states: 5601.
Alabama. Civ. Code (1886), 2858; Ohio. Bates' Anno. Stat. (1897),
Peavey v. Burkett, 35 Ala. 141. 5343-
Arkansas. Sand. & H. Dig. (1894), Tennessee. Code (1896), 4927.
785. Washington. 2 Hill's Anno. Stat.
California. Code Civ. Proc. (1897), (1891), 844.
1036. Wisconsin. Sanb. & B. Anno. Stat.
Delaware. Rev. Stat. (1893), p. 792. (1889), 2947.
Idaho. Rev. Stat. (1887), 4915. Wyoming. Rev. Stat. (1887), 2690.
767 Volume 5.
6487. COSTS. 6488.
V. That JHere state the present condition of the action)
VI. That no previous application for an order requiring plaintiff to
file additional security has been made in this action.
{Signature and jurat as in Form No. 6476.)
b. In Opposition to Motion.
(1) BY AN ADMINISTRATOR.
Form No. 6487.!
{Title of court and cause as in Form No. 6481.)
Jeremiah Mason, being duly sworn, deposes and says:
I. That he is the attorney for the plaintiff in this action.
II. That on \hzfourth day of May, i897, the plaintiff began this
action by the service of a summons and verified complaint, a copy
of which is hereto annexed and made a part of this affidavit.
III. That said action is brought for the benefit of John Killman
and James Killman, the next of kin to the decedent, who reside in
the state of Maine.
IV. That said next of kin are infants of the respective ages
of eight and fourteen years. That the decedent, their father, left no
estate except a few articles of personal apparel and furniture of
small value.
V. That said infants are utterly unable to pay into court two hun-
dred and fifty dollars or to give security for the costs of this action,
and that if required so to do they would be unable to comply, and the
action would be discontinued.
(Signature and jurat as in Form No. 6476.)
(2) BY A POOR PLAINTIFF.
Form No. 6488.
(Precedent in Hamilton v. Dunn, 22 111. 259.)*
[In the Cook County Circuit Court. 3
Patrick Dunn )
against
James Hamilton. )
State of Illinois, ) -i 4
County of Cook, f J
1. The averments in this affidavit estate of the decedent was less than
are taken from the opposing affidavit twenty-five dollars, and that she had
in Fessenden v. Blanchard, 14 Civ. been thereupon duly appointed admin-
Proc. Rep. (N. Y. Supreme Ct.) 279, istratrix, and gave bond, etc. The
where the motion for security was de- affidavit in this latter case set out the
nied. In Lyons z>. Cahill, 12 Civ. Proc. facts which gave rise to the cause of
Rep. (N. Y. Super. Ct.1 72, the motion action with great fullness,
for security was also denied upon the 2. This affidavit was sufficient to de-
affidavit made by the administratrix, feat the defendant's affidavit in support
which alleged that she had applied to of the motion set out supra, Form No.
the surrogate of New York county for 6483.
letters of administration and in her pe- 3. See supra, note 2, p. 765.
tition had alleged that the personal 4. See supra, note 3, p. 765,
768 Volume 5.
6489. . COSTS. 6489.
Patrick Dunn of said county, being duly sworn, deposes and says,
that he is a mason by trade, and that James Hamilton, the defendant
in this suit, is justly indebted to this deponent in a large sum of
money, to wit: the sum of about two hundred dollars, for work,
lab|>r and services done and performed by this, deponent for said
Hamilton, and that said suit herein was commenced against said
Hamilton to recover said sum of money; that this deponent is not
insolvent, although a poor man, and that if said Hamilton would pay
this deponent what is justly his due, he could pay all the debts he
owes in the world. This deponent further says, that he does not
know what the costs of the court in this case may be, but that
if they do not amount to a large sum of money, he will be able to
pay them without difficulty, especially if said Hamilton pays him what
is now justly his due. This deponent further saith, that he is now
and has been for about a year a resident of the city of Chicago, and
that he has no other residence whatever. And further this deponent
saith not.
[(Signature and jurat as in Form No. 6476.)] 1
2. The Motion. 2
a. Notice of Motion.
Form No. 6489.
{Title of court and cause as in Form No. 6476.)
Please take notice that upon the affidavit of Richard Roe, verified
the fifteenth day of February, i897, a copy of which is hereunto
annexed, and upon the defendant's notice of appearance which is
herewith served upon you, the undersigned will apply to this court, at
a special term thereof to be held at the County Hourt-house in the
city of New York on the twenty-fourth day of February, iS97, at ten
o'clock in the forenoon, or as soon thereafter as counsel can be
heard, for an order that the plaintiff pay into this court the sum of
two hundred and fifty dollars, said sum to be applied to the payment
of any costs which may be awarded against him in this action, or if
he so elects that he file with the clerk of this court an undertaking
as prescribed in and by section 3273 of the Code of Civil Procedure,
and that he serve written notice thereof upon the defendant's attor-
ney, and that all other proceedings on the part of the plaintiff be
stayed until such payment or filing of notice thereof, and if the
undertaking be given, until the allowance of such undertaking; and
further that the time for the defendant to answer be extended until
twenty days after notice of such payment into court, or after the
allowance of such undertaking; and for such further relief as may be
just, together with the costs of this motion.
February 15, i897. Joseph Story,
Attorney for Defendant,
111 Broadway, New York City.
To Jeremiah Mason, Esq.,
Attorney for Plaintiff.
1. See supra, note I, p. 766. 2. For forms of motion, generally,
consult the title MOTIONS.
5 E. of F. P. 49. 769 Volume 5.
6490. COSTS. 6493.
b. Order to Show Cause.
Form No. 6490.
At a. Specia/Term of the Supreme Court, held in and for the County
of Suffolk, at the County Court-house in Riverhead, in said County, on
the fourth day of October, iS96.
Present: Hon. John Marshall, Justice.
John Doe, plaintiff, }
against
Richard Roe, defendant. )
Upon reading and filing the affidavit of Joseph Story, verified the
third day of October, i8#7, it is ordered that the defendant show cause
before me (or at a special term of this court to be held} at the County
Court-house in Riverhead on the seventh day of October, i8P7, at ten
o'clock in the forenoon, or as soon thereafter as counsel can be heard,
why he should not be required to give security for costs according to
the statute, and why, if he fails to give such security, his proceed-
ings should not be stayed, and why the plaintiff should not have
such other or further relief as may seem just, with the costs of this
motion.
Enter: /. M., J. S. C.
c. Motion.
Form No. 6491.'
In the District Court in and for Polk County, Iowa.
John Doe, plaintiff, )
against >- Motion for Security for Costs.
Richard Roe, defendant. J
The defendant moves the court to require the plaintiff herein to
give security for the costs of the above entitled action, upon the
grounds set out in the annexed affidavit. 2
Joseph Story, Attorney for Defendant.
Form No. 6492.*
State of Rhode Island and Providence Plantations.
Providence, Sc. Common Pleas Division
of Supreme Court.
John Doe ^\
against \ No. 212.
Richard Roe. j
The defendant in the above entitled case hereby moves that the
plaintiff be required to furnish surety for costs.
By his Attorney, Joseph Story.
Form No. 6493.*
The State of Texas, ) Suit pending in the District Court of Freestone
County of Freestone, j County, October Term, A. D. i8#7.
1. Iowa. Code (1897), 3847. 3. Rhode Island. Gen. Laws (1896),
2. For the form of affidavit see supra, c. 247, 3.
Form No. 6477. 4. Texas. Rev. Stat. (1895), art.
1440.
770 Volume 5.
6494. COSTS. 6495.
John Doe, plaintiff, )
against ' V No. 212.
Richard Roe, defendant. )
And now comes John Hancock, clerk of the District Court in and for
Freestone county, Texas, and moves the court to. require the plaintiff
rrerein to give a good and sufficient bond in the above styled and
numbered cause.
John Hancpck, Clerk.
Form No. 6494.'
John Doe
against
Richard Roe.
Now comes the defendant, by Joseph Story, his attorney, this twenty -
first day of April, A. D. i8P7, and suggests to the honorable court that
the plaintiff herein is a nonresident of the state of Virginia, and
requires and moves that this suit be dismissed unless within sixty
days from the entry of this suggestion the plaintiff shall be proved
to be a resident of this state or shall file security for costs according
to the statute.
Joseph Story.
3. The Order. 2
a. Generally.
Form No. 6495.
(Title of court and cause as in Form No. 6490.)
Upon reading and filing the affidavit of Joseph Story, verified the
Mm/ day of April, i8#7, and the order to show cause granted herein
on \hzfifth day of April, i897, and after hearing Joseph Story, of coun-
sel for the defendant, and Jeremiah Mason, of counsel for the plaintiff
(or and after reading and filing affidavit or admission of due service of a copy
of the order to show cause above mentioned and no one appearing in
opposition); Ordered,
I. That within twenty days the plaintiff deposit with the clerk of
this court the sum of two hundred and fifty dollars, said sum to be
applied to the payment of any costs which may be awarded to the
defendant in this action, or if he so elects that he file an under-
taking, as is prescribed by section 3273 of the Code of Civil Proced-
ure, with one sufficient surety for the payment of any costs which
may be so awarded, and further that the plaintiff serve notice upon
the defendant's attorney of such payment into court, or the filing of
such undertaking, also within said twenty days.
II. That until such payment into court and notice thereof, or until
the allowance of such undertaking, all proceedings on the part of the
plaintiff, except to review or to vacate this order, be stayed.
III. That the time, of the defendant to answer be extended to
1. Virginia. Code (1887), 3539. 2. For forms of orders, generally.
West Virginia. Code (1891), c. 138, consult the title ORDERS.
*
771 Volume 5.
6496. COSTS. 6496.
twenty days after the notice of such payment or the allowance of such
undertaking. 1
IV. That the plaintiff pay to the defendant ten dollars costs of
this motion.
Enter,: f.M.,]. 5. C.
b. For Stay of Proceedings Unless Security is Filed.
Form No. 6496.
(Precedent in National Exch. Bank v. Silliman, 4 Abb. N. Cas. (N. Y. Supreme
Ct.)22 7 .)
[(Title of court and cause as in Form No.
On reading and filing the motion papers in the cause, consisting on
the part of the defendants of the printed case in this action, on which
the appeal was argued in the court of appeals, the affidavits of
Jtobert F. Silliman made on the 2d day of May, iS76, and on the 18th
day of August, iS76, copies of two affidavits annexed to last men-
tioned affidavits, called schedule A, and made by Henry W. Mosher
and John S. Fake, affidavits made by F. J. Parmenter on 2d day of
May and lf)th day of August, iS76, a certified copy of the certificate
of association of the Exchange Bank of Lansingburgh, and the notices
of motion; and on the part of the plaintiff affidavits made by Alfred
W. Murray and Levi Smith, by which among other things it appears
that the above named plaintiff when this action was commenced was
a corporation under the name of the National Exchange Bank of
Lansingburgh, and that the same was afterwards duly dissolved and
this action continued by the plaintiff in the name of the original
plaintiff. And after hearing Mr. F. J. Parmenter of counsel for the
defendants, and Mr. E. L. Fursman and Mr. Esek Cowen of counsel
for the plaintiff, and after due deliberation had; Ordered that all
further proceedings in this action on the part of the plaintiff be and
the same are hereby stayed unless the plaintiff shall within twenty
days after the service of a copy of this order on the attorneys of
record for the plaintiff, give and file an undertaking or bond with at
least two sufficient sureties, conditioned for the payment to the
defendants herein of all costs and disbursements which shall be
recovered and allowed to them in this action, which said sureties, if
accepted to, shall justify in the same manner as prescribed in cases
of arrest and bail, under chapter i, of title 7 of the Code of Pro-
cedure. Upon the giving of such security for costs, this action may
continue in the name of the above entitled plaintiff.
[Enter: /. W., J. S. C]
1. A stay of proceedings in an order by an ex parte order and by the same
to furnish security for costs does not order which requires the filing of securi-
extend the defendant's time to answer, ty. No affidavit of merits is required.
Sniffen v. Peck, 6 Civ. Proc. Rep. (N. Worthington v. Warner, 19 Abb. N.
Y. City Ct.) 188; White v. Smith, 16 Cas. (N. Y. City Ct.) 266.
Abb. Pr. (N. Y. Supreme Ct.) toq, note; 2. The matter to be supplied within
Hamilton v. Dunn, 22 111. 259. But [ ] will not be found in the reported
such extension of time may be granted case.
772 Volume 5.
6497. COSTS. 6498.
e. To File Security or Show Cause.
Form No. 6497.'
Supreme Court, City and County of New York.
John Doe, plaintiff,
i against
Richard Roe, defendant.
Upon reading the annexed affidavit of Joseph Story, verified the
fourteenth day of May, i&97, and upon motion of Joseph Story, attor-
ney for the defendant, it is ordered that the plaintiff, within ten days
from the service of a copy of this order, deposit with the clerk of this
court two hundred and fifty dollars, or file an undertaking with one
surety in the sum of two hundred and fifty dollars as security for
costs to the defendant, and serve notice thereof on said attorney for
the defendant within the same period, or that he show cause before
me at the County Court-house in New York City on the eighteenth day
of May, 1 897, at ten o'clock in the forenoon, why he should not do so;
and until such time, or until such payment into court and notice
thereof, or until the allowance of such undertaking, that all the
plaintiff's proceedings herein, except to review or vacate this order,
be stayed.
May 14, 1 897. John Marshall, J. S. C.
4. The Bond, Undertaking, or Recognizance. 2
a. In Civil Cases.
(1) GENERALLY.
(a) In Courts of Record.
Form No. 6498.
(Sand. & H. Dig. Ark. (1894), 781.)*
1. The present New York practice is to absolute order, and in such case it is
move by notice of motion requiring se- absolutely necessary to bring on the
curity, or by short order to show cause motion by notice or order to show cause,
why security should not be required. Wood v. Blodgett, 15 Civ. Proc. Rep.
But under sections 3268 and 3269 of the (N. Y. Supreme Ct.) 114.
Code (Birds. Rev. Stat. (1896), p. 717, 2. Indorsement on Writ. In the fol-
63, 64), the notice of the motion or an lowing states the surety's obligation is
order to show cause is not necessary, complete by indorsement on the writ:
and an ex parte absolute order to file Maine. Rev. Stat. (1883), c. 8l r
security is proper, although it is pref- 6.
erable to follow the present practice as Massachusetts. Pub. Stat. (1882), c^
above stated. Churchman v. Merritt, 161, 24.
50 Hun (N. Y) 270; Schwartz v. Scott, 25 Michigan. How. Anno. Stat. (1882),
N. Y. Civ. Proc. Rep. (N. Y. Supreme Ct.) 8 7296.
53; Mitchell v. Dick, 8 Misc. Rep. (N. Y. New Hampshire. Pub. Stat. (1891),
Super. Ct.) 98. But where security is c. 218, 8.
sought for costs already accrued in the South Dakota. Dak. Comp. Laws
action, as well as for those which shall (1887), 5207.
hereafter accrue, the language of the 3. In Munzesheimer v. Byrne, 56
code does not authorize an ex parte Ark. 117, the bond, while not following
773 Volume 5.
6499. COSTS. 6500.
Pulaski Circuit Court.
John Doe )
against > Bond for Costs.
Richard Roe. )
We undertake that the plaintiff, John Doe, shall pay to the defend-
ant, Richard Roe, and to the officers of the court, all costs that may
accrue to them in this action, either in the Pulaski Circuit Court or
any other court to which it may be carried.
Samuel Short.
William West.
Approved :
Richard Styles, Clerk.
Form No. 6499.'
In the Superior Court of the City and County of San Francisco, State
of California.
John Doe, plaintiff, )
against > Undertaking for Costs.
Richard Roe, defendant. )
Whereas, on the fourteenth day of January, 1 897, an order was
made in the above entitled action requiring the plaintiff above
named to file security for all costs and charges that may be awarded
against him the said plaintiff by judgment or in the progress of
the action, not exceeding the sum of three hundred dollars. Now
therefore we, Samuel Short and William West, both of the said city
and county of San Francisco, jointly and severally do undertake that
we will pay such costs and charges as may be awarded against the
plaintiff by judgment or in the progress of this action, not exceed-
ing the sum of three hundred dollars.
In testimony whereof we have hereunto set our hands this fifteenth
day of January, A. D. i87.
Samuel Short.
William West.
{Justification of sureties^
Form No. 6500.
(Conn. Gen. Stat. (1888), 896.)
You, John Doe, as principal, and Samuel Short, as surety, acknowl-
the statute, was said to be good as a Eagle Phenix Mfg. Co.
common-law bond. It was in the By Samuel P. Mendeg, Agt.
words following, to wit: L. A. Byrne.
"Eagle Phenix Manufacturing^ E. F. Friedell."
Co., Plaintiff, 1. California. Code Civ. Proc.
v. [ (1897), 1036. See also the following
Munzesheimer dr 3 Klein, statutes, to wit:
Defendants. Idaho. Rev. Stat. (1887), 4915.
We undertake that the plaintiff, The Montana. Code Civ. Proc. (1895),
Eagle Phenix Manufacturing Company, 1871.
shall pay to the defendants, Munzes- Nevada. Gen. Stat. (1885), 3510.
heimer & Klein, or either of them, all Utah. Rev. Stat. (1898), 3354.
damages which they may sustain by Washington. Ballinger's Anno,
reason of this attachment, if the order Codes & Stat. (1897), 5186.
therefor is wrongfully obtained, and 2. See the title JUSTIFICATION OF
the costs of this action. SURETIES.
774 Volume 5.
6501. COSTS. 6503.
edge yourselves as jointly and severally bound (or You Samuel Short
acknowledge yourself bourtd} to Richard Roe, in a recognizance of one
hundred dollars, that the said John Doe shall prosecute the action
which he has now commenced against the said Richard Roe at the
Superior Court to be holden at Hartford in and or the county of
Hartford on the second Tuesday of October, A. D. i87, to full effect,
and that he shall pay any costs for which judgment shall be rendered
against him thereon.
Taken and acknowledged at Hartford, on the eighth day of Sep-
tember, A. D. 1 897, before me.
John Jay,
Justice of the Peace.
Form No. 6501.
(Mills' Anno. Stat. Colo. (1891), 674.)
John Doe \
against V District Court.
Richard Roe. )
I do hereby enter myself security for costs in this case, and
acknowledge myself bound to pay, or cause to be paid, all costs
which may accrue in this action, either to the opposite party or to
any of the officers of this court pursuant to the laws of this state.
Dated this sixteenth day of April, i8#7.
Richard Styles.
Approved:
Abraham Kent, Clerk.
Form No. 6502.'
In the Supreme Court of the District of Columbia, the seventh day
of October, iS97.
John Doe, plaintiff, ) N SJg
against [ At "law
Richard Roe, defendant. ) ,
The plaintiff, and Samuel Short, his surety, appear, and, submitting
to the jurisdiction of the court, hereby undertake for themselves
and each of them, their and each of their heirs, executors, and
administrators, to make good all costs and charges that the defend-
ant may be put to in case the plaintiff is nonsuited, or judgment be
given against him; and they further agree that such judgment
against the plaintiff may be rendered against all the parties whose
names are hereto affixed.
John Doe.
Samuel Short.
Form No. 6503.
(Starr & C. Anno. Stat. 111. (1896), p. 1064, par. i.)
John Doe \
vs. v In the Cook County Circuit Court. 2
Richard Roe. )
1. District of Columbia. Comp. Stat. 2. Need not State Term. The security
(1894), p. 446, 30. need not state the term in which the
775 Volume 5.
6504. COSTS. 6505.
I, Richard Styles, do enter myself security for all costs which may
accrue in the above cause.
Dated this sixteenth day of April, i897.
Richard Styles!
Approved:
Abraham Kent, Clerk of said Court. 2
Form No. 65O4. 3
Know all men by these presents, that we, John Doe, principal, and
Samuel Short and William West, sureties, are held and firmly bound unto
Richard Roe in the sum of Jive hundred dollars, lawful money of the
United States, well and truly to be paid to the said Richard Roe, his
heirs, executors and assigns.
The condition of the above obligation is such, that whereas, on the
third day of October, A. D. i8>7, the said John Doe commenced an
action in the District Court against the said Richard Roe, and whereas
the said plaintiff is a nonresident of the state of Iowa, and the
defendant having filed his affidavit in said action stating that he has
a good defense thereto:
Now if the said John Doe shall well and truly pay the costs which
may accrue in said action, in said court or in any other court to
which the same may be carried, either to the said defendant or the
officers of the court, then this obligation to be void, otherwise to
remain in full force and virtue.
John Doe, Principal.
Samuel Short, Surety.
William West, Surety.
{Justification of sureties?)*
Approved : John Hancock,
Clerk Polk County District Court.
Form No. 6505.*
In the District Court, Laramie County, Kansas.
John Doe, plaintiff, )
against > Bond for Costs.
Richard Roe, defendant. )
Whereas, John Doe, as plaintiff, is about to commence, in the Dis-
action was brought, so long as there is dell, 2 111. 593. But where the under-
no difficulty in identifying the cause in taking was entitled "The Same vs.
which it is filed. The recital even of The Same," and was upon a separate
the wrong term does not necessarily sheet, with nothing to refer it to the
vitiate the security. Himes v. Blakes- properly entitled cause, it was held in-
ley, 21 111. 509. sufficient. Warnock z/. Russell, 2 111.
1. Undertaking valid: Where Christian 383.
name of surety abbreviated, King v. Z. Approval. The undertaking must
Thompson, 4 111. 184; where signed in be approved by the clerk. Starr & C.
copartnership name, Linn v. Bucking- Anno. Stat. 111. (1896), p. 1066, par. 2.
ham, 2 111. 452; where the form was 3. Iowa. Code (1897), 3847. See
written on the back of the declaration also Neb. Comp. Stat. (1897), 6208.
and bore no title of the court; where 4. See the title JUSTIFICATION OF
entitled " Same v . Same," written below SURETIES.
the praecipe for summons, and signed 6. Kansas. Gen. Stat. (1889), 4682.
in partnership name, Kettelle v. War- Under the provisions of this statute
776 Volume 5.
6506. COSTS. 6506.
trict Court of Laramie county, Kansas, a civil action against Richard
Roe, as defendant, entitled as above: Now, therefore, vie John Doe?-
as principal, and Samuel Short and William West, as sureties, do hereby
undertake and bind ourselves unto the said defendant in said action,
and to each and every other person who may have a right to such
costs or to any part thereof, that the said plaintiff will pay all costs
that may accrue in said action in case he shall be adjudged to pay
them; and in case the same cannot be collected from the defendant
if judgment be obtained against him, or any or either of them, that
the said plaintiff will pay the costs made by said plaintiff; and we
hereby acknowledge ourselves indebted to whomsoever it may con-
cern to the amount of said costs, which it is above agreed the said
plaintiff shall pay. To the faithful performance of the foregoing
obligation we bind ourselves and our representatives firmly by these
presents.
Witness our hands this fourth day of October, A. D. iS97.
John Doe.
Samuel Short.
William West.
The above bond is hereby approved by me this/<?rM day of October y
A. D. 1 857. John Hancock, Clerk of the District Court.
{Justification of sureties. ) 2
Form No. 6506.
(Bullitt's Civ. Code Ky. (1895), p. 692.)*
John Doe, plaintiff, \
against > Bond for Costs.
Richard Roe, defendant. )
We undertake that the plaintiff, John Doe, shall pay to the defen-
dant, Richard Roe, and to the officers of the court, all costs that may
accrue t'o them in this action either in the Bourbon Circuit Court or in
any other court to which it may be carried.
every plaintiff must file such a bond or defendant herein, and the same cannot
deposit with the clerk such sum or be collected from the defendant, as or-
sums as in the opinion of the clerk will dered by the court herein,
cover the costs. Given under my hand at Leavenworth
Precedent. In Ryan v. Williams, 29 city, Kansas, this twelfth day of Febru-
Kan. 492, the bond was as follows: vary, 1879.
"Henry T. Green, as Administrator of Matthew Ryan."
the Estate of Theodore Jones, Deceased, It was held that this bond bound the
Plaintiff, v. James E. Williams, as Ad- obligor to pay only such judgment as
ministrator of the Estate of Jacob Me- might be rendered for costs against
Murtry, Deceased, Defendant. Green as administrator, and did not
I, Matthew Ryan, a resident of Leaven- bind him to pay any judgment for costs
worth county, in Kansas, hereby bind that might be rendered against any
and obligate myself that the plaintiff other or subsequent administrator,
above named shall pay all costs that 1. The plaintiff himself need not exe-
may accrue in the above entitled ac- cute the bond. Kan. Gen. Slat. (1889),
tion, in case he shall be adjudged to 4682.
pay the same; and I further bind and 2. See the title JUSTIFICATION OF SURE-
obligate myself that he will pay all TIES.
costs made by him in said action, in 3. Kentucky. Bullitt's Civ. Code
case judgment be obtained against the (1895), 29, 616, 621. .
777 Volume 5.
6507. COSTS. 6508.
Witness our hands this thirteenth day of May, i897.
John Doe. x
Samuel Short.
{Justification of sureties. ) 2
Form No. 6507.*
State of Minnesota, ) District Court,
County of Ramsey. ) s ' Second Judicial District.
John Doe, plaintiff, )
against
Richard Roe, defendant. )
Know all men by these presents, that we, Samuel Short and William
West, of the city of St. Paul, in said county and state, are held and
firmly bound unto the clerk of this court in the sum of seventy-five
dollars, lawful money of the United States, to be paid to the said
clerk, for which payment, well and truly to be made, we bind our-
selves, our heirs, executors and administrators firmly by these
presents.
Sealed with our seals, and dated the fourth day of October, A. D.
1 897.
The condition of the above obligation is such, that if the plaintiff
in this action shall well and truly pay, or cause to be paid, to the said
clerk, for the benefit of the party who may become entitled thereto,
all disbursements and costs that may be adjudged against said plain-
tiff in this action, then this obligation shall be void, otherwise of force.
Samuel Short. (SEAL)
William West. (SEAL)
Signed, sealed and delivered in presence of Leonard A. Ford.
Charles Mainjoy.
State of Minnesota, }
> ^i^
County of Ramsey. \
On this fourth day of October, A. D. i8P7, before me personally
appeared Samuel Short and William West, to me known to be the
same persons described in and who executed the foregoing bond, and
each for himself acknowledged the same to be his own free act and
deed. 4 Abraham Kent, Justice of the Peace.
{Justification of sureties.}*
Form No. 6508.*
State of Mississippi, De Soto County.
We, John Doe, complainant, as principal, and Samuel Short and
1. The plaintiff's signature to the sometimes required to be acknowledged
bond is not necessary. Bullitt's Civ. by rule of court or even by statute, as
Code Ky. (1895), p. 692. in New York Code Civ. Proc., 810.
2. See the title JUSTIFICATION OF But it seems that a judge may excuse
SURETIES, and Bullitt's Civ. Code Ky. compliance with a rule requiring a bond
(1895), 683, 684. to be acknowledged by sureties. Gale
3. Minnesota. Stat. (1894), 5518. v. Seifert, 39 Minn. 171.
As to the use of an undertaking in 5. See the title JUSTIFICATION OF
place of the bond, see Stat. (1894), SURETIES.
7989. 6. Mississippi. Anno. Code (1892),
4. Acknowledgment. A bond is not 86 1, 863.
ordinarily , acknowledged, but it is After Suit Commenced. Where the
778 Volume 5.
6509. COSTS. 6510.
William West, sureties, agree to pay, as may be required by law, all
costs that may accrue in an action for {Here describe the action) to be filed
in the Chancery Court of the county of De Soto in said state, by said
complainant against Richard Roe.
' Signed with our hands and delivered this the /ra r//fc day of October >
A. D. 1 897.
John Doe.
Samuel Short.
William West.
I approve the above security this the fourth day of October, A. D.
1 897. John Hancock, Chancery Clerk.
Form No. 6509.
(Mo. Rev. Stat. (1889), p. 2240, No. 50.)'
J6hn Smith, plaintiff, ) Jn the ^^ CQurt Qf
T i, r^ \ if A f \ November term, i890.
John Jones, defendant. )
I, Jasper James, a resident of the state of Missouri, do hereby
acknowledge myself bound to pay all the costs which may accrue in
the above entitled cause.
Witness my signature, this fourth day of October, iS97.
Jasper James.
Form No. 6510.*
Supreme Court, City and County of New York.
John Doe, plaintiff, \
against > Security for Costs. Nonresident Plaintiff.
Richard Roe, defendant. )
Whereas, John Doe, the above named plaintiff, has commenced an
action in the above named court against Richard Roe, the above
named defendant,
Now, therefore, we, Samuel Short of No. 23 W. 23d street, in New
security for costs is required after suit After Suit Begun. Security after suit
commenced under Miss. Anno. Code begun is provided for in Mo. Rev. Stat.
(^892), 862, the following form may (1889), 5$ 2916. The form of the under-
be used: taking is given in Mo. Rev. Stat. (1889),
"Stateof Mississippi, \ T ~. /-_.. p. 2240, No. 51, as follows:
De Soto County. fttCUwwyCoaH v j Jasper James ^ a resident of the
John Doe, plaintiff, ) state of Missouri, do hereby acknowl-
against edge myself bound to pay all the costs
Richard Rot, defendant. ) which have accrued, or may accrue, in
The plaintiff in the above styled the above entitled cause," the caption
case having been duly required by said and conclusion being the same as those
court to give security for costs, we, in the text.
John Doe, as principal, and Samuel 2. New York. Code Civ. Proc.,
Short and William West, sureties, agree 3273 (Birds. Rev. Stat. (1896), p. 717,
to pay, as may be required by law, all 63). See also the following statutes:
costs accrued or to accrue in said suit. Alabama. Civ. Code (1886),
Signed" (concluding as in Form No. 2858, 2863.
6508). Indiana. Homer's Stat. (1896),
1. Missouri. Rev. Stat. (1889), 589.
2915-
779 Volume 5.
6511. COSTS. 6511.
York City, and Richard Shannon of No. 172a Clifton place, in the city
of Brooklyn, do hereby, pursuant to the statute in such case made and
provided, jointly and severally undertake that we will pay, upon
demand, 1 to the defendant all costs which may be awarded to him in
said action, not exceeding the sum oitwo hundred and fifty dollars.
Dated May 10, iS97.
Samuet Short.
Richard Shannon.
(Acknowledgment. ) 2
{Justification of sureties.^
I hereby approve the foregoing undertaking both as to form and
manner of execution and as to the sureties therein mentioned. 4
John Marshall, J. S. C.
Form No. 6 5 1 1 . 5
Nash County In the Superior Court.
John Doe, plaintiff, \
against >- Undertaking for Costs.
Richard Roe, defendant. )
We, John Doe, the plaintiff, and Samuel Short and William West, our
executors and administrators, are bound to the defendant, Richard
Roe, in the above entitled action in the sum of two hundred dollars.
This obligation to be void upon the condition that the said plaintiff,
John Doe, shall pay to the defendant all such costs as the defendant
may recover of the plaintiff in said action. Otherwise to remain in
full force and effect.
Witness our hands tins fourth day of October, i891.
John Doe.
Samuel Short.
William West.
1. The bond should be conditioned however, if the plaintiff shall pay to the
for payment on demand of the obligors defendant all such costs as the defend-
and not on demand of the plaintiff, ant may recover of the plaintiff in this
Montague v. Bassett, 18 Abb. Pr. (N. action.
Y. Supreme Ct.) 13. Witness our hands and seals this
2. See supra, note 4, p. 778. day of , A.D. i8<?-.
3. See the title JUSTIFICATION OF (SEAL)
SURETIES. (SEAL)
4. This approval is required by N. J. B. Martin. (SEAL)"
Y. Code Civ. Proc., 3275 (Birds. Rev. The superior court having held this
Stat. (1886), p. 719, 70). writing not a substantial or any com-
5. North Carolina. Code (1883), pliance with the statute cited above,
209. A money deposit in lieu of an the plaintiff excepted, whereupon the
undertaking is authorized by this supreme court held that while the bond
section. was certainly informal and in some
Precedent. In Holly v. Perry, 94 N. respects not very definite and certain,
Car. 31, the instrument was written on yet taken in connection with the sum-
the back of the summons, and was as mons, its purpose as indicated by its
follows: terms, and applying it as contemplated
" We acknowledge ourselves bound by the statute, it ought to be treated as
unto the defendant in this action in the in effect a sufficient undertaking,
sum of two hundred dollars; to be void,
780 Volume 5.
6512. COSTS. 6514.
Form No. 6512.
(S. Car. Circuit Ct. Rules (1894), No. X.) 1
State of South Carolina, )
York County. J
John Doe 1
vs. > Complaint for .
Richard Roe. }
I acknowledge myself liable for the costs of this case, and consent
that if the plaintiff fail to recover, the defendant may have execution
for his costs against me.
Given under my hand this twenty-fourth day of April, A. D. i897.
Samue/ Short.
Witness: Approved:
Richard Styles, Richard Styles,
C. C. P and G. S. C. C. P. and G. S.
Form No. 6513.*
The State of Texas, \ Suit pending in the District Court of
County of Freestone. f Freestone County.
John Doe, plaintiff, )
against V No. 212.
Richard Roe, defendant. )
Know all men by these presents, that we, John Doe, as principal, and
Samuel Short and William West, as sureties, do hereby acknowledge
ourselves jointly and severally bound to pay to the officers of said
court all costs that maybe adjudged against the plaintiff in the above
entitled suit, during the pendency or at the final determination
thereof, and judgment for the said costs may be rendered against us.
Witness our hands, this seventh day of October, A. D. iS97.
John Doe.
Samuel Short.
William West.
Approved this seventh day of October, A. D. i8P7.
John Hancock, Clerk,
District Court, Freestone Co., Texas.
Form No. 6514.'
Know all men by these presents, that I, Samuel Short, am held and
firmly bound unto the commonwealth of Virginia, in the sum of two
hundred and fifty dollars to be paid to the said commonwealth, for
which payment, well and truly to be made, I bind myself, my heirs,
executors and administrators, firmly by these presents. And I
hereby waive the benefit of my homestead exem^ ion as to this obliga-
1. Under this rule the plaintiff may A deposit of money has been held a
deposit a sum of money instead of giv- sufficient compliance with a rule for a
ing the above undertaking; the amount bond for costs. Henderson v. Riley, I
thereof to be fixed by the clerk. Tex. App. Civ. Cas., 483.
2. Texas. Rev. Stat. (1895), art. 3. Virginia. Code (1887), 3539.
1441. West Virginia. Code (1891), c. 138,
Arizona. Rev. Stat. (1887), 907. g 2.
781 Volume 5.
6515. COSTS. 6515.
tion, and any claim or right to discharge any liability to the com-
monwealth arising under this bond, with coupons detached from the
bonds of this state. Sealed with my seal, and dated this fourth day
of October, in the year one thousand eight hundred and ninety-seven.
The condition of the above obligation is such, that whereas a suit
hath been instituted in the Circuit Court of the County of Albermarle
by John Doe against Richard Roe for (Here describe the cause of
action), and a suggestion was entered by Richard Roe, the said
defendant, that the said plaintiff, John Doe, is not a resident of the
state of Virginia, and that security was required of him for the pay-
ment of the costs and damages 1 which may be awarded to the said
defendant and of the fees due or to become due in the said suit to
the officers of the said court. Now if the above bound Samuel Short
shall well and truly pay all such fees as are due or may become due
from the said John Doe to the officers of the said court in the prose-
cution of the said suit, and moreover shall well and truly pay to the
said defendant all such costs and damages as may be awarded to him
in case the said plaintiff shall be cast therein, and condemned to
pay the same, then this obligation is to be void, otherwise to remain
in full force and virtue,
Samuel Short. (SEAL)
Executed, acknowledged, etc., in the presence of
Leonard A. Ford.
Form No. 6515.*
Circuit Court, Dane County.
John Doe, plaintiff,
against
Richard Roe, defendant.
Whereas, an order has been made in the above entitled action,
requiring the plaintiff above named to file security for all costs that
may be incurred by the defendant in said action, in the sum of two
hundred and fifty dollars, within twenty days after the service of said
order upon said plaintiff, and staying all proceedings on the part of
said plaintiff in said action until such security be filed;
Now, therefore, we, Samuel Short and William West, of the city of
Madison, county of Dane, and state of Wisconsin, do undertake that
the said plaintiff will pay, on demand, all costs that may be awarded
to the said defendant in said action, in any court, not exceeding the
sum of two hundred and fifty dollars.
In testimony whereof, the parties above named have hereunto set
their hands and seals \\i\sfourth day of October, A. D. iS97.
Samuet Short. (SEAL)
In presence of Leonard A. Ford. William West. (SEAL)
Charles Mainjoy.
{Justification of sureties^
1. In West Virginia the words "and suit to the officers of the court." W.
damages " need not be used, the stat- Va. Code (1891), c. 138, 2.
ute requiring the undertaking to be 2. Wisconsin. Sanb. & B. Anno.
" for payment of the costs which may Stat. (1889), 2946.
be awarded to the defendant, and of 3. See the title JUSTIFICATION OF
the fees due or to become due in such SURETIES.
782 Volume 5.
6516. COSTS. 6518.
(jb) In Justice's Court.
Form No. 6516.
(Mills' Anno. Stat. Colo. 111. (1891), 2634,)
State of Colorado, ) ,
Dolores County, f ss *
John Doe )
vs. V Demand $60.
Richard Roe. )
I, Samuel Short, do enter myself security for all costs that may
accrue in the above case, \\i\sfifth day of March, i&98.
Samuel Short. (SEAL)
Form No. 6517.
(Starr & C. Anno. Stat. 111. (1896), c. 79, par. 177.)
' i SS.
State of Illinois,
District
John Doe \ Before j ohn Marshall,
D . , vs ; ( Justice of the Peace.
Richard Roe. ) J
I, Richard Styles, do enter myself security for all costs that may
accrue in the above cause.
Dated this sixteenth day of April, iS97.
Richard Styles.
Form No. 6518.'
State of Kansas, \
Linn County. j
Whereas, John Doe intends to commence an action against Rich-
ard Roe before Abraham Kent, a justice of the peace of Potosie town-
ship in said county, and whereas the said John Doe is a nonresident
of said county; now we the undersigned, residents of said Linn
county, undertake to pay the said Richard Roe all costs which may
accrue in said action.
Samuel Short.
William West.
Approved by me this fifth day of March, A. D. iS98.
Abraham Kent, Justice of the Peace.
1. Kansas. Gen. Stat. (1889), 5042. after the commencement thereof has
Plaintiff Removing Pending Suit. removed from the said county of Linn;
Where plaintiff removes after the ac- now we. the undersigned, residents of
tion is commenced, and security is said county, bind ourselves to the
required under the provisions of Kan. above named defendant for the pay-
Gen. Stat. (1889), 5043, an undertak- ment of all costs which may have ac-
ing should be entitled in the cause and crued or which may accrue " (concluding
recite that " Whereas, John Doe, the as in the text).
plaintiff in the above entitled action,
783 Volume 5.
6519. COSTS, 6521.
i
Form No. 6519.
(Mo. Rev. Stat. (1889), 6156.)!
John Doe, plaintiff, \
against > Obligation for Costs.
Richard Roe, defendant. )
We bind ourselves to pay all costs that have accrued or may here-
after accrue in this cause.
John Styles.
Richard Styles.
Oliver Elsworth.
Approved April 16, iS97.
Abraham Kent, Justice of the peace.
State of Oregon,
County of Multnomah
Form No. 6520.*
Justice's Court for the Precinct of Central Portland.
\
John Doe, plaintiff, )
against > Undertaking for Costs.
Richard Roe, defendant. )
We, John Doe, plaintiff, and Samuel Short, surety, undertake to pay
Richard Roe, the defendant in this action, all costs and disburse-
ments that may be adjudged to him in this action.
Dated at Portland, \ti\sfifth day of March, i&98.
John Doe, Plaintiff.
Samuel Short, Surety.
(Justification of surety. ) 3
(2) IN ELECTION CONTEST.
Form No. 6521.
(Precedent in Hilliard v. Brown, 103 Ala. 319.)*
The State of Alabama, \ Whereas, T. H. Brown, an elector of the
Pike County. \ county of Pike in said State, has this day
filed in the office of the clerk of the circuit court of said county, his
grounds of contest of the election of W. J. Hilliard to the office of
Judge of Probate of said county, at an election held on the 1st day
of August, iS92: Now, therefore, we, the undersigned, hereby ac-
knowledge ourselves to be bound as security for the costs of said con-
1. See also forms in Mo. Rev. Stat. tification is necessary, see Holcomb v.
(1889), p. 2264, Nos. 159, 160. Teal, 4 Oregon 352.
2. Oregon. Hill's Anno. Laws (.1892), 4. This bond is drawn in conformity
2063. to the requirements of Ala. Civ. Code
3. For forms connected with the jus- (1886), 428. See also Sand. & H. Dig.
tification of sureties see the title JUSTIFI- Ark. (1894), 2702, 2704.
CATION OF SURETIES. As to when jus-
784 Volume 5.
6522. COSTS. 6523.
test. In witness whereof, we have hereunto set our hands and seals
this llth day of August, 1886.
Approved August 17th, i%92. \ T. H. Brown. (SEAL)
O. Worthy, Clerk. ] W. A. McBryde. (SEAL)
O. R. Dykts. (SEAL)
L. M. Treadwdl. (SEAL)
/. P. Wood. (SEAL)
O. C. Wiley. (SEAL)
b. In Criminal Cases.
Form No. 6522.
(Sand. & H. Dig. Ark. (1894), 2323.)
State of Arkansas
against
Richard Roe.
I, Samuel Short, as principal, and William West, as security, bind
ourselves to pay all costs in this cause.
Signed \\i\sfourteenth day of April, A. D. i&97.
Samuel Short.
William West.
Form No. 6523.'
State of Michigan, \
County of Lenawee. \
Be it remembered, that on the fifth day of March, A. D. i&98, be-
fore me, Abraham Kent, a justice of the peace of Adrian township in
said county, personally came John Doe, Samuel Short and William
West, all of the township of Adrian in the county of Lenawee and state
of Michigan, and severally and respectively acknowledged themselves
to be indebted to the people of the state of Michigan in the sum of
one hundred dollars each, to be levied of their respective goods and
chattels, lands and tenements, for the use of said people, if default
shall be made in the conditions following:
Whereas, the above bounden John Doe has this day made complaint
on oath before me, that at the toiunship of Adrian in the said county,
on the third day of March, A. D. iS98, Richard Roe did (Here describe
the offense charged).
Now, therefore, the condition of this recognizance is such, that if
the said John Doe shall pay all costs which shall accrue to the court
sheriff, constable and jury upon the proceedings to be had upon said
complaint, if he does not establish the same (and unless I, or the
court before whom the trial for said offense shall be had, shall certify
in my or its minutes of said trial, that there was probable cause for
the making of said complaint), then this recognizance shall be void,
otherwise in force. Jhn Doe.
Samuel Short.
William West.
Taken, subscribed and acknowledged before me the day and year
first above written.
Abraham Kent, Justice of the Peace.
1. Michigan. How. Anno. Stat. (1882), 9063. See also Wyoming Laws
(1893), c. 30, I.
. 5 E. of F. P. 50. 785 Volume 5.
6524. COSTS. 6525.
5. Notice of Security Filed.
Form No. 6524.'
Circuit Court, Dane County.
John Doe, plaintiff,
against
Richard Roe, defendant.
To Richard Roe, defendant above named:
Pursuant to the order heretofore made in the above entitled
action, requiring the above named plaintiff to file security for costs
herein, and staying proceedings on the part of said plaintiff meanwhile,
Take notice, that the said plaintiff * has filed with the clerk of the
Circuit Court of Dane county an undertaking (of which a copy is
herewith served upon you) with two sufficient sureties, to the effect
that said plaintiff will pay on demand all costs that may be awarded
to said defendant in such action, in any court, not exceeding two
hundred and fifty dollars, the sum mentioned in said order, and that
the stay of proceedings on the part of said plaintiff in said action,
directed by said order, is hereby terminated.
Dated March 15, A. D. iS98.
Yours, etc.,
Jeremiah Mason, Plaintiff's Attorney.
\
6. Dismissal for Failure to Give Security.
a. Affidavit in Support of Motion. 3
Form No. 6525.*
State of Ohio, ) j h c , Common Pleas.
Allen County, ss. )
John Doe, plaintiff, }
against
Richard Roe, defendant. )
Joseph Story, being duly sworn, deposes and says:
I. That he is the attorney for the defendant in this action.
II. That on the first day of April, i8#7, upon motion of the
defendant, an order was made and entered herein upon due notice to
the plaintiff, the Honorable John Marshall, presiding, requiring plain-
tiff, as a nonresident, to file security for costs to the defendant within
ten days from said date, and that said order was duly served upon
plaintiff's attorney on the second &ay of April, iS97.
1. Wisconsin. Sanb. & B. Anno, paid into court the sum of two hundred
Stat. (1889), 2946. and fifty dollars, to be applied to the
New York. Birds. Rev. Stat. (1896), payment of any costs which may be
p. 719, 67. awarded against him in this action.
Honey Deposit. Where, in place of Dated" (concluding as in Form No.
filing an undertaking, plaintiff has paid 6524).
money into court as under the pro- 2. For forms of affidavits, generally,
visions of Birds. Rev. Stat. N. Y. (1896), consult the title AFFIDAVITS, vol. I, p.
p. 719, 67, the notice should be as 548.
follows: (Commencing as in Form No. 3. Ohio. Bates' Anno. Stat. (1897),
6324, and continuing down to*) " has 5341.
786 Volume 5.
6526. COSTS. 6527.
III. That said period of ten days expired on the twelfth day of
April, i&97, but that plaintiff failed to file security before the expira-
tion of said time, and by failure so to do he has not complied with
the requirements of the order of April first, iS97.
IV. That thereafter and up to the present time the plaintiff has
wholly failed and neglected to file security for costs as directed. 1
Wherefore the defendant is entitled to an absolute order that the
complaint herein be dismissed with costs and that he have judg-
ment accordingly. Joseph Story.
Sworn to before me this seventeenth day of April, iS97.
Abraham Kent,
Notary Public, Allen County, State of Ohio.
b. Notice of Motion.*
Form No. 6526. 3
( Title of court and cause as in Form No. 6525.)
To John Doe, plaintiff above named:
You are hereby notified that on \.\\t fifteenth day of March, \W8,
defendant will apply to the Hon. John Marshall, one of the judges of
said court, at the court-room, for an order dismissing said cause for
failure of plaintiff to comply with the order to give security for costs.
Affidavits will be used in support of said motion.
Dated March 5, i&98.
Joseph Story, Defendant's Attorney.
c. Motion. 4
Form No. 6527.*
(Title of court and cause as in Form No. 6525.)
Defendant moves that this cause be dismissed for failure of plain-
tiff to comply with the order to give security for costs.
Joseph Story, Defendant's Attorney.
d. The Order. 8
1. Where an order nisi is granted 4. For forms of motions, generally,
and security is not filed until after the consult the title MOTIONS.
expiration of the time therein limited, 5. Ohio. Bates' Anno. Stat. (1897),
the practice is to refuse to dismiss the 5341.
complaint if the security be filed at any 6. For statutes relating to dismissal
time before the order be made abso- for failure to file security see as fol-
lute. Cornuel -v. Heinze, 67 Hun (N. lows:
Y.)652, 51 N. Y. Si. Rep. 652; Robin- Alabama. Civ. Code (1886), 2858.
son v. Meyer, 25 Ark. 79; King v. Arizona. Rev. Stat. (1887), 906.
Jackson, 25 Neb. 467; Pflaum v. Grin- Arkansas. Sand. & H. Dig. (1894),
berg, 5 Heisk. (Tenn.) 220; Kyle v. 782.
Stinson, 13 Smed. & M. (Miss.) 301; California. Code Civ. Proc. (1897),.
Snowden v. McDaniel, 7 Mo. 313. 1037.
2. For forms of notices, generally, Colorado. Mills' Anno. Stat. (1891),.
consult the title MOTIONS. 675.
3. Ohio. Bates' Anno. Stat. (1897), Delaware. Rev. Stat. (1893), p..
5341- 79 2 -
787 Volume 5.
6528. COSTS. 6529.
(1) DISMISSING SUIT.
(a) Order Nisi.
Form No. 6528.'
(7Y//<? of court and cause as in Form No. 6490.)
Upon reading and filing the affidavit of Joseph Story, verified the
third day of April, iS97, and (enumerating the several papers on which
themotionwas based}, and after hearing Joseph Story, of counsel for the
defendant, and Jeremiah Mason, of counsel for the plaintiff (or and
after reading and filing affidavit or admission of due service of notice of
this motion and no one appearing in opposition), Ordered,
I. That plaintiff's complaint herein be and hereby is dismissed
with costs of the action, unless plaintiff shall file security for costs
herein according to the order of the seventh day of April, i897, and
also pay the costs mentioned in said order within five days from the
date of service of this order.
II. That plaintiff pay {concluding as in Form No. 6495).
() Absolute Order.
Form No. 6529.*
In the Superior Court of the City and County of San Francisco, State
of California.
Present: Hon. John Marshall, Judge.
John ^plaintiff, ) Qrder Dismissing Action for Failure to
Richard ZTd'ef endant. ) File Securit y for Costs '
Upon reading and filing the affidavit of Joseph Story, verified the
second day of May, \WH, from which it appears that the plaintiff in
this action is a nonresident; that a notice requiring said plaintiff to
furnish security for costs was served upon him by the defendant's
District of Columbia. Comp. Stat. North Dakota. Rev. Codes (1895),
(1894), c. 55, 30. 5599.
Florida. Rev. Stat. (1892), 1301. Ohio. Bates' Anno. Stat. (1897),
Idaho. Rev. Stat. (1887), 4916. 5341.
Illinois. Starr & C. Anno. Stat. Oklahoma. Stat. (1893), 4833.
(1896), c. 33, 3. Oregon. Hill's Anno. Laws (1892),
Indiana. -*- Homer's Stat. (1896), 2063.
589. Rhode Island. Gen. Laws (1896), c.
Iowa. Code (1897), 3848. 247, 4.
Kentucky. Bullitt's Civ. Code (1895), Texas. Rev. Stat. (1895), art. 1440.
617. Utah. Rev. Stat. (1898), 3355.
Maryland. Pub. Gen. Laws (1888), Wyoming. Rev. Stat. (1887), 2688.
art. 24, 9. 1. New York. Code Civ. Proc.,
Missouri. Rev. Stat. (1889), 2915. 3277 (Birds. Rev. Stat. (1896), p. 720,
Montana. Code Civ. Proc. (1895), | 72).
1872. 2. California. Code Civ. Proc.
Nebraska. Comp. Stat. (1897), (1897), 1037.
6209. See also the following statutes:
New Mexico. Comp. Laws (1884), Idaho. Rev. Stat. (1887), 4916.
1843. Montana. Code Civ. Proc. (1895),
New York. Code Civ. Proc. ,3277 1872.
(Birds. Rev. Stat. (1896), p. 720, 72). Utah. Rev. Stat. (1898), 3355.
788 Volume 5.
6530. COSTS. 6532.
attorney on the first day of April, i87, and that thirty days have
elapsed since the service of such notice and yet no security for
costs has been filed; now, after hearing Joseph Story, of counsel for
the defendant, and Jeremiah Mason, of counsel for the plaintiff, in
opposition, upon motion of counsel for the defendant,
Ordered: That the complaint herein be and is hereby dismissed.
Dated May 3, i807. John Marshall, Judge.
Form No. 6530.'
(Title of court and cause as in form No. 6490.)
Upon reading the orders of this court entered the first day of
April, iS97, and the twenty-fifth day of April, iS97, and upon reading;
and filing the affidavit of Joseph Story, verified \htfirst day of May,
i897, by which it appears that the plaintiff has not complied with the
requirements of the orders above mentioned; now, after hearing
Joseph Story, of counsel for the defendant, and Jeremiah Mason, of
counsel for the plaintiff, upon motion of the defendant, ordered:
I. That the complaint of the plaintiff herein be and is hereby
dismissed, and that judgment be entered in favor of the defendant
accordingly.
II. That plaintiff pay (concluding as in Form No. 6495).
Form No. 6531.*
John Doe
against
Richard Roe.
Upon reading the suggestion of the defendant, entered upon the
record the twenty- first day of April, i&97, and the order to file
security made herein on the same day and date, and it appearing
that sixty days from said date have elapsed, and that the plaintiff has
neither proved residence nor filed security for costs according to the
statute, either within said sixty days or afterward up to the oresent
time,
Be it ordered, that this action be and is hereby dismissed.
(2) DENYING MOTION WHERE SECURITY is FILED AFTER
EXPIRATION- OF TIME.
Form No. 6532.
John Doe
against
Richard Roe.
The motion of the defendant to dismiss the petition in this cause
for failure to comply with an order made herein on the tenth day of
April, i8#7, requiring him to file security for costs, as prescribed by
law within fifteen days, and in default thereof providing that his
\.New York. Code Civ. Proc., 2. Virginia. Code (1887), 3539.
3277 (Birds. Rev. Stat. (1896), p. 720, West Virginia. Code (1891) c 138
72). 2.
789 Volume 5.
6533. COSTS. 6533.
action be dismissed, came on for hearing, and it appearing that said
plaintiff has since the expiration of s^ti. fifteen days filed due security
for costs, said motion is overruled and denied.
II. SUITS IN FORMA PAUPERIS.
1. Application for Leave to Sue.
a. In General.
Form No. 6533.'
In the Supreme Court of the District of Columbia.
John Doe, plaintiff, )
against V No. 172.
Richard Roe, defendant. )
To the Supreme Court of the District of Columbia holding an Equity
Court:
The petition of your petitioner respectfully showeth:
I. That your petitioner having filed his bill in this honorable court
against said defendant, thereby setting forth that (Here state concisely
the substance of the bill).
II. That your petitioner is not worth twenty-five dollars in all the
world, his wearing apparel and the matters in question in this cause
only excepted, and that he is utterly unable to prosecute his said
suit unless he be permitted to do so in forma pauperis.
III. Wherefore your petitioner prays that he may be permitted to
prosecute his said suit in forma pauperis, and that he may have the
necessary writs and process without costs or charge for the same,
and that there may be assigned to him learned counsel, which shall
give their counsel nothing taking for the same, and that there may
be appointed in his behalf attorneys and all other officers requisite
and necessary to be had for the speed of the said suit to be had and
made, which shall do their duties without any reward for their coun-
sels, help and business in the same. And your petitioner requests
that Jeremiah Mason, Esquire, be assigned to him as solicitor and
counsel in said cause.
And this your petitioner will ever pray, etc.
John Doe.
I, Jeremiah Mason, counsellor-at-law of the Supreme Court of the
District of Columbia, do hereby certify that I have examined the
cause upon which the plaintiff's bill herein is based, and I conceive
that the plaintiff has just cause to be relieved touching the matter of
this petition, and for which he has exhibited his bill.
Dated May 6th, iS97. Jeremiah Mason.
1. District of Columbia. Comp. Stat. Petition of defendant in forma pauperis
(1894), c. 55, 32. is similar, save that it does not state
New Jersey. Gen. Stat. (1895), p. the contents of the bill.
2598, 368, et seq.
790 Volume 5.
6534. COSTS. 6536.
Form No. 6534.
(Kair. Gen. Stat. (1889), 4684.)'
State of Kansas, \
Cowley County. )
John Doe, plaintiff, )
against > In the District Court of said County.
Richard Roe, defendant. )
I do solemnly swear that the cause of action set forth in the peti-
tion hereto prefixed is just, and I do further swear that by reason of
my poverty I am unable to give security for costs.
John Doe.
Subscribed and sworn to before me this twenty-first day of April,
1 897. Abraham Kent,
Notary Public, Cowley County.
Form No. 6535.*
State of Illinois, \
County of La Salle. J
John Doe, being duly sworn, deposes and says that he is desirous of
commencing suit in the Circuit Court of said county of La Salle
against Richard Roe; that he is a poor person, and unable to prosecute
his suit in this behalf and to pay the costs and expenses thereof, and
that he has reason to believe, and does believe, that his cause of
action for which he desires to bring suit is a meritorious one.
John Doe.
Subscribed and sworn to before me this fifth day of May, i897.
Abraham Kent,
Notary Public, La Salle County.
Form No. 6536.
(Miss. Anno. Code (1892), 870.)
In the Circuit Court for the County of De Soto.
John Doe, plaintiff,
against
Richard Roe, defendant.
State of Mississippi, \
County of De Soto. \
I, John Doe, do solemnly swear that I am a citizen of the state of
Mississippi, and because of my poverty I am not able to pay the costs
or give security for the same in the suit (describing if) which I have
1. This same form is set out in Okla. record. Where the court is in session,
Stat. (1893), 4478, and substantially the affidavit used is substantially like
the same form is sufficient under Mont, that set out in Form No. 6536. See
Code Civ. Proc. (1895), 1873. similar statutes as follows:
2. Illinois. Starr & C. Anno. Stat. Colorado. Mills' Anno. Stat. (1891),
(1896), c. 33, par. 6. 676.
This form of affidavit is used where Kentucky. Gen. Stat. (1888), c.
the plaintiff makes application prior to 26, I.
the convening of the term of a court of
791 Volume 5.
6537. COSTS. 6537.
begun (or which I am about to commence), and that, to the best of my
belief, I am entitled to the redress which I seek by such suit.
John Doe.
Subscribed and sworn to before me this seventh day of May, i8#7.
Abraham Kent,
Clerk De Soto Circuit Court.
Form No. 6537.'
Supreme Court, City and County of New York.
In the Matter of the Application of
John Doe
for Leave to Sue as a Poor Person.
To the Supreme Court of the State of New York.
The petition of John Doe respectfully shows:
I. That he resides in the city, county and state of New York.
II. That he has a cause of action against the Third Avenue Rail-
road Company, arising upon this state of facts, namely: That upon
the third day of November last, at about six o'clock in the #//<?rnoon,
he was crossing Third avenue in the exercise of due care, and by the
negligence of said Third Avenue Railroad Company 's servant, to your
petitioner unknown, said servant then being in control and manage-
ment of a car of said railroad company, then being propelled by
cable power upon Third avenue in said city, your petitioner was
struck by said cable car and grievously injured, wholly without fault
or negligence on his part. 2
III. That your petitioner desires to begin an action in this court
against said Third Avenue Railroad Company for the above cause. 3
IV. That your petitioner is not worth one hundred dollars besides
the wearing apparel and furniture necessary for himself and family
and the subject matter of this action, and is unable to prosecute this
action unless allowed to do so as a poor person. 4
V. That your petitioner is a common day-laborer, and is obliged
to earn his livelihood by that means alone, and that for many months
past he has been unable to work owing to injuries received in the
1. This form is drawn under Birds, or intended to be brought, must be
Rev. Stat. N. Y. (1896), p. 2219, 14. stated in the petition. Birds. Rev.
In several other states the statute is Stat. N. Y. (1896), p. 2219, 14. A
substantially the same, the chief differ- copy of the complaint maybe set out
ence being in the amount that petitioner or annexed and referred to; and if not
is worth. See for example the follow- so set out, the nature of the injuries
ing: should be specified.
Arkansas. Sand. & H. Dig. (1894), 3. Where an action has been begun,
799. this paragraph should read: "That your
Colorado. Mills' Anno. Stat. (1891), petitioner has begun an action against
676. said Third Avenue Railroad Company for
Illinois. Starr & C. Anno. Stat. the above cause," and should state the
(1896), c. 33, par. 5. condition of the case, showing that there
Indiana. Homer's Stat. (1896), 260. has been no laches in applying for leave
Missouri. Rev. Stat. (1889), S 2918, to sue as a poor person.
2919. 4. This paragraph is required by
New Mexico. Comp. Laws (1884), Birds. Rev. Stat. N. Y. (1896), p. 2219,
1844. 14, subs. 2.
2. The nature of the action brought,
^92 Volume 5.
6538. COSTS. 6538.
above stated manner by the fault and negligence of said company,
and he has now become and is impoverished.
VI. That no previous application for leave to sue as a poor person
has been made herein. 1
Wherefore your petitioner prays leave to prosecute the Third
Avenue Railroad Company as a poor person, and further that the court
will assign him attorney and counsel for that purpose.
January 1, i898. John Doe.
City and County of New York, ss.
John Doe, being duly sworn, says that he has read the foregoing
petition, and knows the contents thereof, and that the same is true
to his own knowledge, except as to the facts therein stated to be
alleged upon information and belief, and as to those facts, he believes
it to be true.
John Doc*
Sworn to before me this first day of January, iS98.
Abraham Kent,
Notary Public, New York County.
I, Jeremiah Mason, of the city, county and state of New York y
counsellor-at-law, do hereby certify that I have examined the cause
stated in the above petition, and am of the opinion that the applicant
has a good cause of action therein.
January 1, iS98 Jeremiah Mason?
Form No. 6538.*
Mecklenburg County: In the Superior Court.
John Doe }
against > Application to Sue as a Pauper.
Richard Roe. }
To Hon. John Marshall, Judge (or Clerk)* of Superior Court, Mecklen-
burg County:
This is to certify: ist. That I have examined the case of the
plaintiff in the above entitled action, and believe that he has a good
and meritorious cause of action in fact and law.
ad. That I will prosecute said action as his counsel without any fee
or reward whatever.
Jeremiah Mason, Attorney. 6
1. This paragraph is required only 4. North Carolina. Code Civ. Proc.
when an ex parte application is made. (1891), 210.
2. The petition must be verified by 5. To Whom Made. The application
the applicant's affidavit, unless the ap- may be made either to the judge or to
plicant is an infant under the age of the clerk of the supreme court, and the
fourteen years, and in that case by the authority of the clerk to grant the per-
affidavit of his guardian appointed in mission to sue as a pauper is not
said action. Birds. Rev. Stat. N. Y. restricted to the limits of his authority
(1896), p. 2219, 14. as an officer of the probate court.
3. The petition must be supported by N. Car. Code Civ. Proc. (1891), 210;
a certificate of a counsellor-at-law to Rowark v. Gaston, 67 N. Car. 291.
the effect that he has examined the 6. Certificate of Counsel. The code
case, and is of the opinion that the ap- does not require a certificate of counsel
nlicant has a good cause of action, that the plaintiff has a good cause of
Birds. Rev. Stat. (1896), p. 2219, 14. action, but merely that he shall prove
793 Volume 5.
6539. COSTS. 6540.
Mecklenburg County: ss.
John Doe, being sworn, says: That he is unable to give sureties, or
make the deposit required by law, to enable him to prosecute the
above action against the defendant, Richard Roe above named, and
if required so to do, could not prosecute his said action. He there-
fore prays that he may be allowed to sue in said action as a pauper.
John Doe.
Sworn before me ihisji/t/i day of May, i897.
Abraham Kent, Notary Public.
Form No. 6539.'
State of Tennessee, \
County of Smith. \
I, John Doe, do solemnly swear that owing to my poverty I am not
able to bear the expenses of the action which I am about to com-
mence in the Chancery Court of Smith county against Richard Roe,
and that I am justly entitled to the redress sought, to the best of my
belief.
John Doe.
Sworn and subscribed before me this - /F/ r M day of March, iS98.
John Hancock, Clerk.
Form No. 6540.*
' / District Court of Freestone County,
"
Richard defendant. Oc """ r Te '
John Doe, being duly sworn, says that he is the plaintiff in the
above entitled case, and that he is too poor to pay the costs of court,
and is unable to give security therefor.
John Doe.
Subscribed and sworn to before me this sixth day of October, i897.
Norton Porter,
Notary Public, Freestone County.
this fact by one or more witnesses. N. ized to allow a person to sue in forma
Car. Code Civ. Proc. (1891), 210. And pauperis should do so, at least in
it has been held that his own affidavit general, without such certificate. The
is sufficient proof of the fact, at least in act, however, is only directory, and
so far that where the clerk has allowed the matter is necessarily entirely in the
the plaintiff to sue in forma pauperis discretion of the judge or clerk.
merely on his own affidavit, setting out 1. Tenn. Code (1896), 4928, where
the facts required by statute, and that a statutory form will be found.
he had a good cause of action, the 2. Texas. Rev. Stat. (1895), art. 1442.
court has refused to dismiss his suit. Sufficient Affidavit. An affidavit
Sumner v. Candler, 74 N. Car. 265. which states that plaintiff is unable to
But a certificate of counsel has been give security for or to make a deposit
held sufficient proof of a good cause of sufficient to cover all the costs, but
action. Miazza v. Galloway, 74 N. that he cannot swear that he is unable
Car. 31. And further the rule has been to pay the costs as they accrue, and
laid down in Brendle v. Heron, 68 N. that he has paid all accrued costs ex-
Car. 496, that while this section of the cept a small balance, to cover which
act does not expressly require that he has made a deposit with the clerk,
plaintiff shall have a certificate of an is a sufficient answer to the rule for
attorney to the effect that he has a good costs under this statute. Long v. Mc-
cause of action, yet, upon a fair con- Cauley, (Tex. 1887) 3 S. W. Rep. 689.
struction of the act, no officer author- 3. The affidavit should give the proper
794 Volume 5.
6541. COSTS. 6542.
b. Where Application Is First Made on Appeal.
Form No. 6541.'
Georgia, Bibb County.
In the Superior Court of -said County.
John Doe
against
Richard Roe.
I, John Doe, plaintiff in the above cause, do swear that I am
advised and believe 2 that I have a good cause of appeal in the above
stated case, and that owing to my poverty 3 I am unable to pay the
costs or give security-required by law in cases of appeal.
John Doe.
Sworn to and subscribed before me this tenth day of May, i897.
Norton Porter,
N. P. and Ex-Officio J. P.
c. Upon Claim for Tax Seizure.
Form No. 6542.
(2 Ga. Code (1895), 4618.)
Georgia, Bibb County.
I, John Doe, do swear that I do not interpose this claim for
delay only; that I bona fide claim the right and title to the same;
that I am advised and believe that the claim will be sustained; and
that from poverty I am unable to give bond and 4 security as now
required by law.
John Doe.
{Jurat as in Form No. 6541. )
names of all the panics, but failure so being duly sworn deposeth and saith
to state the names must be taken ad- that he is advised and believes that he
vantage of by motion pointing out the has a good cause of appeal and that
defect in the affidavit, and not by a he is unable to give security on enter-
simple motion to dismiss. Hubby v. ing the same," was held insufficient
Harris, 63 Tex. 456. , both for the above reason and because
1. Georgia. 2 Code (1895), 4465, it did not state that he was unable to
as amended act Dec. 21, 1897. give the security required by law in
2. Where the words "he is advised cases of appeal. Gibbons v. McComb,
and believes that he has a good cause 3 Ga. 252.
of appeal" were omitted, the affidavit Affidavit by Trustee. This form of
was held insufficient, but it was said affidavit would not be sufficient where
to be the privilege of the plaintiff to the appeal was prosecuted by a trus-
move to reinstate the case by amend- tee. In such case the affidavit should
ing the affidavit at any time within state that the " inability to give se-
the term. Holsenbach v. Martin, 28 curity arose from the poverty of the
Ga. 73. trust estate." Scott v. Turpin, 30 Ga.
3. An affidavit which omits the words 964.
"owing to his poverty" is not a suffi- 4. A similar section of the Georgia
cient comnliance with the statute. An code has been amended so that in the
affidavit reading as follows: "Person- affidavit the word "or" is used in
ally came before me John Gibbons, who place of " and." See supra, note I.
795 Volume 5.
6543. COSTS. 6544.
i
2. Order.
a. Of Reference.
Form No. 6543.'
At a Special Term of the Supreme Court held at the County Court-
house in New York City on the second day of January, iS96.
Present: Hon. John Marshall, Justice.
In the Matter of the Petition of
John Doe
for Leave to Prosecute as a Poor Person.
Upon reading and filing the annexed petition of John Doe, verified
on the first day of January, i&96, and the certificate of Jeremiah
Mason, his counsel, dated the first day of January, i&96, and it
appearing to the satisfaction of the court that the facts alleged by
the petitioner are true and that said petitioner has a good cause of
action, and upon hearing Jeremiah Mason, of counsel for the peti-
tioner, and Joseph Story, of the counsel for the defense in opposition,*
Ordered:
I. That the matter be referred to Daniel Webster, Esquire,
counselor of this court, to examine the facts and circumstances of
the case set out in said petition, and to report whether in his opin-
ion said petitioner has a good cause of action against The Third
Avenue Railroad Company named therein, cognizable in and within
the jurisdiction of this court, and whether said petitioner is entitled
to prosecute the said action as a poor person.
II. That if said referee is satisfied that said petitioner is entitled
to prosecute as a poor person and that he has reasonable grounds to
prosecute the action in this court, that he report the name of a
proper person for assignment as attorney and counsel in the prose-
cution of such action.
Enter: /. M., J. S. C.
b. Granting Leave to Sue.
Form No. 6544.
(Commencing as in Form No. 6543, and continuing down to *)
Ordered:
I. That the petitioner be allowed to prosecute as a poor person,
and that he have assigned to him attorneys, counsel, and all other
officers requisite for prosecuting his said suit, who shall do their
duty therein without reward or compensation for the same.
II. That John Jay, Esquire, is hereby assigned to him as attorney
and counsel for that purpose.
Enter: J. M.,]. S. C.
1. In a case where the facts are not poor person without first ordering a
fairly within the view of the court, as is reference, but in cases not of this class
usually the case in actions for personal the court will issue an order sometimes
injuries resulting from negligence, the on an ex parte application,
court will not grant leave to sue as a
796 Volume 5.
6545. COSTS. 6547.
Form No. 6545.'
Mecklenburg County: ss.
John Doe \
against > Order Granting Leave to Sue as a Pauper.
Richard Roe. )
In the above entitled action, upon the certificate and affidavit
above set forth, it is Ordered:
i st. That the above named John Doe be allowed to prosecute his
said suit as a pauper.
2d. That no officer 2 shall require of him any fee, and he shall
recover no costs.
3d. That Jeremiah Mason be assigned to him as counsel to prose-
cute said action.
This////* day of May, iS97.
John Marshall,
Judge (or Clerk) Superior Court, 3
County of Mecklenburg.
Form No. 6546.*
It is ordered, that John Doe be admitted to prosecute his suit
against Richard Roe in forma pauperis ; and Jeremiah Mason is hereby
appointed counsel in his behalf, according to the prayer of the fore-
going petition.
John Marshall,
Judge Freestone County Court.
c. Denying Leave to Sue.
Form No. 6547.
( Title of court and cause as in Form No. 6543.)
Upon reading and filing the petition of John Doe, verified the first
day of January, iS96, and the certificate of Jeremiah Mason, his coun-
sel, dated the first day of January, iS96, and upon reading and filing
in opposition the affidavits of Albert J. Elias and Michael Murphy,
both verified on the tenth day of January, i896, and it failing to
appear to the satisfaction of the court that the facts alleged by the
petitioner are true (or it appearing that this motion has been unreason-
ably delayed until after the case has been noticed for trial), and on hear-
ing Jeremiah Mason, of counsel for the petitioner, and Joseph Story,
1. North Carolina. Code Civ. Proc. witnesses. Draper v. Buxton, go N.
(1891), 210-212. Car. 182.
2. A plaintiff suing in forma pauperis 3. The written authority of a judge
must pay the witnesses whom he sum- or clerk of a superior court, authorizing
mons. Only officers of the court can the plaintiff's suit as a pauper, must
be included in the order relieving from be filed with the clerk and he will issue
costs. Morris v. Rippy, 4 Jones L. summons. N. Car. Code Civ. Proc.
49 (N. Car.) 533; Bailey v. Brown, 105 (1891), 209.
N. Car. 127. 4. Texas. Rev. Stat. (1895), arts.
But if the plaintiff suing in forma 1109, 1164.
fauperit'\s successful in his suit he is No caption is required, as the judge's
not entitled to recover the costs of his order is subscribed to the petition.
797 Volume 5.
6548.
COSTS.
6549.
of counsel for the defense, in opposition, Ordered: That the petition
be and is hereby denied.
Enter: /. M., J. S. C.
d. Annulling Leave to Sue.
Form No. 6548.'
( Title of court and cause as in Form No. 6543.)
Upon reading and filing the affidavit of .Richard Roe, verified the
tenth day of January, iS96, from which it appears that John Doe, plain-
tiff in this action, has been guilty of improper conduct in the prose-
cution thereof, for which cause it is proper that the order of this
court, made the second day of January, iS96, allowing said. John Doe
to prosecute said action as a poor person, should be annulled, and
upon reading and filing proof of due service of notice of this motion
to Jeremiah Mason, attorney for the defendant, and after hearing
Jeremiah Mason, of counsel for the defendant, and no one appearing
in opposition, upon motion of said counsel for the defendant, Ordered:
That the aforementioned order granting leave to said John Doe to
prosecute said action as a poor person be and the same is hereby
annulled.
Enter: /. M., J. S. C.
III. TAXATION.
1. In General.
a. Notice of Taxation.*
Form No. 6549.*
To Joseph Story, Esq., Attorney for Defendant'.
Take notice that the foregoing is a true copy of the plaintiff's bill
1. New York. Code Civ. Proc.,
462 (Birds. Rev. Stat. (1896), p. 2220,
17).
In Mississippi the court will dismiss
'an action " commenced or continued on
affidavit of poverty, if satisfied that the
allegation of poverty is untrue or that
the cause of action is frivolous and ma-
licious." Miss. Anno. Code (1892),
871.
2. Costs are taxed by the clerk upon
notice to the opposite party in the fol-
lowing states:
California. Code Civ. Proc. (1897),
1033.
Connecticut. Gen. Rules Prac., No.
X, 16.
Massachusetts. Pub. Stat. (1882), c.
198, 23.
Michigan. How. Anno. Stat. (1882).
g 8996, 8997.
Minnesota. Stat. (1894), 5505.
Montana. Code Civ. Proc. (1895),
1867.
New York. Code Civ. Proc., 3263
(Birds. Rev. Stat. (1896), p. 716, 58).
North Dakota. Rev. Codes (1895),
5585.
Oregon. Hill's Anno. Laws (1892),
556.
Rhode Island. Gen. Laws (1896), c.
247,8 17-
South Carolina. Code Civ. Proc.
(1893), 326.
Wisconsin. Sanb. & B. Anno. Stat.
(1889), 2927.
For a letter proposing to tax a bill of
costs, which was held not a notice of
taxation, see Brown v. Ferguson, 2
How. Pr. (N. Y. Supreme Ct.) 128.
3. Michigan. How. Anno. Stat.
(1882), 9002.
798
Volume 5.
6550. COSTS. 6551.
of costs in the within entitled cause, proposed to be taxed, and of
the affidavit of disbursements, required by law, to be read in support
thereof; and that application will be made to the clerk of the said
court to tax the same, at his office, on theyf/Mday of May, A. D. iB98,
at ten o'clock A. M.
Dated this thirtieth day of April, A. D. i898.
Jeremiah Mason,
Attorney for the Plaintiff.
Form No. 6550.
Take notice that I shall present a bill of costs, of which the fore-
going is a true copy, 1 to the clerk of this court for adjustment, at his
office in the county court-house, in the village of Riverhead, on the
twenty-fourth day of May, i898, at ten o'clock in the forenoon of that
day. 2
May 18, i&98. Yours, etc.,
Jeremiah Mason,
Attorney for Defendant (or Plaintiff}.
To Joseph Story, Esq.,
Attorney for Plaintiff (or Defendant).*
Form No. 6551.*
Circuit Court, Dane County.
John Doe, plaintiff,
against
Richard Roe, defendant.
To Jeremiah Mason, Attorney for Plaintiff:
Please take notice that the defendant in the above entitled action
will apply to the clerk of the aforesaid court, at his office in Madison,
in the county of Dane and state of Wisconsin, on \hefifth day of
May, A. D. i&98, at ten o'clock in the forenoon, to tax his costs and
disbursements in said action, and that the same when so taxed be
inserted in the entry of judgment in said action.
Yours, etc.,
Joseph Story, Attorney for Defendant.
1. A copy of the bill of costs specifying notice is then sufficient. N. Y. Code
the items, with the disbursements Civ. Proc., 3263 (Birds. Rev. Stat.
stated in detail, must be served with (1896), p. 716, 58).
the notice of taxation. N. Y. Code 3. Upon Whom Served. The notice
Civ. Proc., 3263 (Birds. Rev. Stat. must be served upon the attorney for
(1896), p. 716, 58); Gildersleeve v. each adverse party who has appeared,
Halsey, 3 Sandf. (N. Y.) 756. and is interested in reducing the
2. Five dmyi notice of taxation of costs amount thereof. N. Y. Code Civ. Proc.,
is required unless all the attorneys 3263 (Birds. Rev. Stat. (1896), p. 716,
serving said notice and served with said 58).
notice ceside in and have an office in 4. Wisconsin. Sanb. & B. Anno,
the same town or city where the bill of Stat. (1889), 2927.
costs has been taxed. Two days'
799 Volume 5.
6552. COSTS. 6553.
b. Proof of Right to Tax.
(1) CERTIFICATE OF JUDGE.
Form No. 6552.
(Precedent in Hudson v. Guttenberg, 9 Abb. N. Cas. (Brooklyn City Ct.) 418. )'
[At a Special Term of the City Court of Brooklyn held at the County
Court-house, on the fifteenth day of December, iS80.
Present: Hon. Joseph Neilson, C. J.
Charles Hudson, plaintiff,
against
Frederick Guttenberg, defendant. ] a
On reading and filing affidavit, I, Joseph Neilson, chief judge of the
court, do hereby certify that in the trial of the above action before
me 3 on the 8th day of December, i%80, three separate and distinct
causes of action were set forth in the complaint and separate and dis-
tinct issues joined thereon, and that the jury found for the plaintiff
on the second cause, and for the defendant on the first and third
causes of action set forth in the complaint; and I do therefore
certify that the defendant is entitled to two bills of costs against the
plaintiff and which may be set off against the bill of costs to which
plaintiff is entitled.
J.N.
(2) AFFIDAVITS. 4
(a) By Attorney, of Costs and Disbursements.
Form No. 6553.
(Precedent in Burnham v. Hays, 3 Cal. 116.)*
State of California, County of San Francisco.
G. W. Beck, one of the attorneys of the plaintiff above named,
being duly sworn, deposeth and saith, that the items of the foregoing
bill of costs are correct, to his best knowledge and belief, and that
the disbursements have necessarily been incurred in the action. And
further saith not.
G. W. Beck.
Sworn to and subscribed before me on the 26th May, i&-52.
H. Marshall, Clerk.
1. New York. Code Civ. Proc., certificate may continue from this point
3248 (Birds. Rev. Stat. (1896), p. 711, as follows: "on the eighth day of De-
43). cember, i8<&>, the question of title to
2. The words and figures enclosed by real estate was raised and put in issue
[ ] will not be found in the reported by the pleadings therein, and came in
case, but have been added to render question on the trial. J. N."
the form complete. 4. For forms of affidavits, generally,
3. Where Title to Eeal Property is In- consult the title AFFIDAVITS, vol. i, p. 548.
volved. Whereupon the trial the title 5. This affidavit annexed to the bill
to real property comes in question, the of costs was held to be sufficient.
800 Volume 5.
6554. COSTS. 6555.
Form No. 6554.'
State of Michigan, }
County of Wayne. \
Jeremiah Mason, being duly sworn, says that the items of costs
charged in the foregoing bill of costs, as disbursements, have actually
been paid, or the liability therefor incurred, and were necessary and
are reasonable in amount; that the witnesses therein named were in
good faith made to attend and were deemed material and necessary,
in the within entitled cause, and they respectively traveled the num-
ber of miles, and actually attended the number of days specified;
\ha.\. John Doe, the plaintiff in said cause, was in attendance upon said
court for the time charged for the purpose of being sworn as a wit-
ness, and not to assist in the management of said cause, and traveled
the number of miles specified in said bill of costs, for the purpose of
giving evidence; and that the copies and exemplifications charged
for were actually and necessarily used, or necessarily and in good
faith obtained for use.
Jeremiah Mason.
Sworn to and subscribed before me this///// day of May, A. D. i&98.
(SEAL) Norton Porter,
Notary Public, Wayne County.
Form No. 6555.
(Precedent in Dallemand v. Swensen, 54 Minn. 33.)*
State of Minnesota,
County of Hennepin.
Frank R. Hubachek being duly sworn, says that he is one of the
attorneys of the plaintiffs in the above entitled action; that the fore-
going is a true and correct statement of the costs and disbursements
of said plaintiffs in the above entitled action, and that all the items
thereof have been actually and necessarily paid or incurred therein,
by and on behalf of said plaintiffs; and that each of the above named
witnesses was a material 3 witness for the plaintitfs in said action and
was sworn and testified, and that he necessarily traveled the number
of miles set opposite his name going from his said place of residence
to, and returning from the place of trial, and necessarily attended
the number of days set opposite his said name.
Frank R. Hubachek.
Subscribed and sworn to before me this 26 1 A day of July, iB92.
(SEAL) Edith A. Saxton,
Notary Public, Hennepin County, Minnesota.
1. Michigan. How. Anno. Slat, ance with his notice under the plea of
(1882), | 9002. the general issue in said cause, but that,
2. This form of affidavit was held unexpectedly to deponent, the defend-
sufficieat. ant did not call any witnesses on the
3. The following clause, to wit: "And defense, and for this reason it became
deponent further says, that a number of unnecessary to call such witnesses on
said persons were not called and sworn the part of deponent," has been held too
in the case, though they were sub- vague; for the necessity as well as
poenaed, or their attendance procured, the materiality must clearly appear
in good faith, in anticipation of a defense from the affidavit. Gilberts. Kennedy,
to be made by the defendant, in accord- 22 Mich. 5.
5 E. of F. P. 51. 801 Volume 5.
6556. COSTS. 6556.
Form No. 6556.'
Supreme Court, City and County of New York.
John Doe, plaintiff,
against
Richard Roe, defendant.
City and County of New York, ss.
Jeremiah Mason, being duly sworn, deposes and says: *
I. That he is attorney for the plaintiff in this action, and was pres-
ent as counsel at the trial of this cause.
II. That the foregoing disbursements have been actually made or
incurred in the cause of this action, except the items {specifying them),
which items are claimed as prospective disbursements, and as to
these, that he believes them as stated above to be correct.
III. That Samuel Short was summoned as a witness for the plain-
tiff at the trial of this cause by the service upon him of a subpoena;
that the travel fees demanded for his attendance are at the statutory
rate for the distance of three hundred miles; that said Samuel Short
resides in the city of Albany, where he was served with the subpoena.
IV. That William West attended the trial of this cause as a witness
for the plaintiff at his request; that the travel fees which are de-
manded for his attendance are at the statutory rate for the distance
of twenty miles; that said William West resides in the city of Yonkers.
V. That the said Samuel Short and William West were respectively
present as witnesses at the trial during two days, namely, the seventh
day of May and the eighth day of May last, that their testimony was
(or was believed to be~) material to the cause of the plaintiff herein.
That the distances for which travel fees are asked are the distances
by the usual and reasonable route from their respective places of
residence to the place of trial and return. 2
1. New York. Code Civ. Proc., Oregon. Hill's Anno. Laws (1892),
3267 (Birds. Rev. Stat. (1896), p. 717, 556.
62). . South Carolina. Code Civ. Proc.
Taxation is by the clerk, upon affida- (1893), 326.
vits similar to those used in New York South Dakota. Dak. Comp. Laws
in the following states: (!887), 5197.
Alabama. Civ. Code (1886), 2855. Utah. Rev. Stat. (1898), 3350.
Arizona. Rev. Stat. (1887), 912. Washington. Ballinger's Anno.
Arkansas. Sand. & H. Dig. (1894), Codes & Stat. (1898), 5173.
807. Wisconsin. Sanb. & B. Anno. Stat.
California. Code Civ. Proc. (1897), (1889), 2927.
1033. 2. The affidavit should show the name
Colorado. Mills' Anno. Stat. (1891), and place of residence of each of the
692. witnesses; the distances they severally
Idaho. Rev. Stat. (1887), 4912. resided from the place of trial according
Illinois. Starr & C. Anno. Stat. to the usual traveled route, and the
(1896), p. 1075, par. 25. number of miles they respectively trav-
Michigan. How. Anno. Stat. (1882), eled as such witnesses for the purpose
9002. of getting to the place of trial and re-
*Minnesota. Stat. (1894), 5505. turn therefrom, and that they were ma-
Missouri. Rev. Stat. (1889), 2941. terial and necessary, or that the party
Montana. Code Civ. Proc. (1895), believed them to be so. Wheeler v.
1867. Lozee, 12 How. Pr. (N. Y. Supreme Ct.)
Nevada. Gen. Stat. (1885), 3508. 446; Taaks v. Schmidt, 25 How. Pr. (N.
North Dakota. Rev. Codes (1895), Y. Supreme Ct.) 340; Hicks v. Brennan,
5585. 10 Abb. Pr. (N. Y. Supreme Ct.) 304.
802 Volume 5.
6557. COSTS. 6558.
VI. That the copies for papers for which charge is made above
were actually and necessarily used in this case (or necessarily obtained
for use).
Joseph Story.
Sworn to before me this 15th day of May, i8#6'.
Abraham Kent,
Notary Public, New York County.
> ss.
Form No. 6557.'
State of South Dakota,
County of Hughes.
Jeremiah Mason came personally before me, and having been first
duly sworn, deposes and says that he is the attorney of said plaintiff
in the above entitled action; that the above bill and items of costs
and disbursements therein are just and correct, and have been or
will be necessarily incurred in said action.
Jeremiah Mason.
Subscribed and sworn to before me Otis fifth day of May, i898.
( . Norton Porter,
Notary Public, Hughes County.
() By Referee, for Reference Fees.
Form No. 6 5 5 8 .*
{Title of court and cause, and venue as in Form No. 6556.)
Richard Styles, being duly sworn, deposes and says:
I. That he was appointed referee in this cause by consent on the
first day of April, i895.
II. That in the necessary business of such reference he held fifty-
one hearings on fifty-one different days, as here tabulated {giving dates
in full).
III. That after the submission of the controversy deponent neces-
sarily spent ten days in examining the evidence and in making his
report, to wit: {Here set out the days in full.) 3
{Signature and jurat as in Form No. 6656. )
(<r) By Wit ness, for Travel Fees. 4 '
1. South Dakota. Dak. Comp. Laws davit, omitting the formal parts, is as
(1887), 5197. follows:
2. If there is any controversy as to "James M. Afaxcy, being first duly
the fee taxed for reference, the best sworn, doth depose and say, that he
practice is to present an affidavit made was, in the year eighteen hundred and
by the referee himself. Shultz v. Whit- forty, a deputy of Garret Elkin, who
ney, 9 Abb. Pr. (N. Y. C. PI.) 71. was then sheriff of Sangamon county.
3. The affidavit should clearly show That at the June term, eighteen hun-
the time spent by the referee in the dred and forty, a writ of attachment
business of the reference, and that this issued out of the Supreme Court of this
time was necessarily required. Brown State directed to any and all sheriffs of
v. Windmuller, 36 N. Y. Super. Ct. all counties of the state of Illinois,
Rep. 75. against John Pearson, to answer for a
4. By Sheriff for Travel Fee*. In contempt of said Supreme Court, in
People v. Pearson, 4 111. 286, the affi- refusing to obey a peremptory writ of
803 Volume 5.
6559. COSTS. 6560.
Form No. 6559.'
{Title of covrt and cause, and venue as in Form No. 6556.)
William West, being duly sworn, deposes and says that he came to
New York from Yonkers to attend the trial of this cause on the
seventh day of May, i894, as a witness for the plaintiff, and at his
request, and that he would not have come to the city of New York
on that day except for the purpose of being such witness.
{Signature and jurat as in Form No. 6556.)
c. Objection to Items.
(i) NOTICE TO CLERK.
Form No. 6560.*
State of Minnesota, \ In the District Court.
County of Ramsey, f Second Judicial District
fohn Doe, plaintiff,
against
Richard Roe, defendant.
Please take notice that the defendant in the above entitled action
objects to the taxation of the item {Here set out the item and amount
verbatim] as disbursements for witness fees of Richard Styles made by
the plaintiff in said action, said item being contained in and part of
the bill of costs herein, which was duly served upon said defendant;
and the grounds of his objection to the taxation of such item are as
follows, to wit: that the trial was set down for a certain day, being
the fifth day of May, i89?, and that it was not necessary for said
mandamus, issued out of the said court, being engaged in the pursuit of said
and to him directed and delivered; Pearson, and in bringing him back to
which said writ of attachment was this court, ten days. .That this depo-
delivered to this deponent to execute, nent necessarily expended, for his ex-
That this deponent went immediately penses in pursuing said Pearson, and
in search of said Pearson, who was in bringing him back to court, the sum
the city of Springfield, on the day of of twenty-eight dollars and seventy-five
the issuing of said writ. This depo- cents, and for horse hire the sum of
nent further saith that, although he thirty-eight dollars. This deponent,
went immediately in search of said therefore, prays this court to direct the
Pearson, he was not able to find him clerk of this court to tax the amounts
within the county of Sangamon, but thus expended by him, for expenses
learned that he had covertly and secretly and horse hire, with the costs in the
left the city and was fleeing from the above entitled cause,
process of this court, for the purpose of James C. Maxcy.
evading justice; and this deponent con- Sworn and subscribed, this fjtA day
ceiving that it was his duty to pursue of January, 18^?, before me.
the fugitive, hired a horse and gave E. Peck, C. S. C."
chase to said Pearson, and traveled six 1. Witnesses' fees can be charged on
days before he was able to overtake an affidavit made by them that they
him. That he overtook him in Clay attended as witnesses, and would not
county, and caused him to be arrested have attended except for the purpose
by the sheriff of said county of Clay, of being witnesses. Taaks v. Schmidt,
who delivered the prisoner to this affi- 25 How. Pr. (N. Y. Supreme Ct.) 340.
ant, for the purpose of bringing him to 2. Minn. Stat. (1894), 5505. The
Springfield, to answer for his contempt objection must be in writing and must
to this court. That this deponent specify grounds,
brought said Pearson to Springfield,
804 Volume 5.
6561. COSTS. 6582.
witness to attend the whole number of days for which disburse-
ments for him are claimed, but that it was necessary for him to
attend upon two only of those days. 1
Joseph Story,
Attorney for Defendant.
To Jeremiah Mason, Esq. ,
Attorney for Plaintiff,
and
To Abraham Kent,
Clerk of the District Court, Second Judicial District.
(2) CERTIFICATE OF CLERK.
Form No. 6561.'
State of Minnesota, \ In the District Court.
County of Ramsey. \ Second Judicial District.
John Doe, plaintiff,
against
Richard Roe, defendant.
I, Abraham Kent, clerk of the District Court for the Second Judi-
cial District, state of Minnesota, do hereby certify that the above
bill of costs was duly brought on for taxation before me, by the
plaintiff, on the elei>enth day of May, iS97, and that a written objec-
tion to the item {specifying if) was made by the defendant and duly
filed with me in the following form: {Here set out a copy of the objection
filea), and that I allowed the taxation of said bill, including said item,
over his objection.
Abraham Kent,
Clerk District Court, Second Judicial District.
2. Relaxation.
1. Where the objection was " to the upon notice. For statutes relating to
item of $17.48, charged for Baker's relaxation see as follows:
witness fees" and the ground was " be- Arkansas. Sand. & H. Dig. (1894),
cause said cause was set down for trial 809.
upon day certain, and it was not neces- Colorado. Mills' Anno. Stat. (1891),
sary to have the witness present so 693.
many days," the objection filed was Illinois. Starr & C. Anno. Stat.
held sufficient, the court saying that (1896), p. 1076, par. 26.
the form of the certificate was a mere Iowa. Code (1897), 3864.
question of practice and that this form Kansas. Gen. Stat. (1889), 4695.
was deemed sufficient by the lower Kentucky. Stat. (1894), 906.
court. Davidson v. Lamprey, 17 Minn. Mississippi. Anno. Code (1892),
32. 891.
2. Minn. Stat. (1894), 5505. Noob- Missouri. Rev. 'Stat. (1889), 2941.
jection not so certified by the clerk can New Jersey. Gen. Stat. (1895), p.
be raised before the court upon appeal. 2579, 8 2 % 2 '< P- 2 58> 284.
Davidsons/. Lamprey, 17 Minn. 32. North Carolina. Code Civ. Proc.
3. In a large number of states no (1891), 532.
notice of the primary taxation by the Oklahoma. Stat. (1893), 4490.
clerk is served upon the opposite party; Oregon. Hill's Anno. Laws (1892),
but any party aggrieved makes appli- 556.
cation to the court for the taxation Vermont. Stat. (1894), 1698.
805 Volume 5.
6562. COSTS. 6564.
a. Where Costs have been Taxed Without Notice.
(1) NOTICE.
Form No. 6562.'
Please take notice that the within bill of costs will be presented
for retaxation to the county clerk of the county of Suffolk, at his
office in the village of Riverhead, on the nineteenth day of May, \W8,
at ten o'clock in the forenoon.
(Date, signature and address as in Form No. 6550. )
Form No. 6563.*
Please take notice that on the fifth day of May, i898, at ten o'clock
A. M., or as soon thereafter as counsel can be heard, application will
be made to John Hancock, clerk of said court, at the court-house in
the city of Bismarck, in the county of Burleigh, state of North Dakota,
to have the costs and disbursements in the above entitled action,
which were taxed by the clerk of said court on the first day of May,
\W8, and entered in said judgment, a copy of the items of which is
herewith served upon you, retaxed, and that any sums deducted
therefrom, upon such retaxation, will be applied upon the judgment
and execution in this action.
Dated May 2, iB98.
Yours respectfully,
Jeremiah Mason, Attorney for Plaintiff.
To Joseph Story, Esq., Attorney for Defendant.
(2) AFFIDAVIT FOR ORDER TO SHOW CAUSE.
Form No. 6 5 6 4 . J
(Commencing as in Form No. 6556, and continuing down to *.)
I. That he is the attorney for the defendant in this action.
II. That judgment for the plaintiff was entered herein on the first
day of April, iS97*
III. That the bill of costs herein was presented by the plaintiff's
attorney to the county clerk of the county of New York on the third
day of April, i8#7, and was by him taxed and allowed in favor of
said plaintiff.
IV. That no notice of taxation of costs was served upon the
defendant.
{Signature and jurat as in Form No. 6556.)
Virginia. Code (1887), 3552, 3554. Proc., 3264 (Birds. Rev. Stat. (1896),.
Washington. 2 Hill's Anno. Stat. p. 717, 59).
(1891), 843. 2. North Dakota. Rev. Codes (1895),
West Virginia. Code (1891), c. 138. 5586.
12, 14. 3. New York. Cote Civ. Proc.,
1. Costs may be taxed in the first in- 3264 (Birds. Rev. Stat. (1896), p. 717,
stance without notice, but where this 59).
course is followed notice of retaxation North Dakota. Rev. Codes (1895),
must be served. N. Y. Code Civ. 5586.
806 Volume 5.
6566. COSTS. 6567.
(3) ORDER TO SHOW CAUSE.
\
Form No. 6565.'
Supreme Court, Suffolk County.
John Doe, plaintiff,
against
Richard Roe, defendant.
Upon reading the affidavit of Joseph Story, verified the eighteenth
day of May, iS97, Ordered:
That the plaintiff herein show cause, before Mr. Justice Marshall,
at the special term of this court, to be held at Riverhead on the
twenty-fifth day of May, iS97, why an order should not issue direct-
ing the retaxation of costs in this cause, and the crediting, upon the
execution, of any amount by which said costs as originally taxed shall
be reduced.
John Marshall, J. S. C.
b. Where Items have been Allowed or Refused.
(1) AFFIDAVIT.
Form No. 6566.*
(Commencing as in Form No. 6564, an d continuing down to *.)
III. That due notice was served upon him by plaintiff's attorney
that the bill of costs, a copy of which is annexed to this affidavit,
marked Exhibit A, would be presented to the county clerk of New
York county for adjustment, at his office in the city of New York, on
the fourteenth day of May, i8#7, at ten o'clock in the/<?raioon.
IV. That deponent was present at the said time and place, and
made objection to said clerk to several items, to wit: {Here specify
the items objected to), 3 and that he presented in support of his objections
the affidavits submitted herewith, marked Exhibit B and C7. 4
V. That deponent's said objection was overruled by said clerk,
and said items were by him allowed.
{Signature and jurat as in form No. 6564-)
(2) NOTICE OF MOTION.
Form No. 6567.*
1. New York. Code Civ. Proc., 4. No affidavits, can be used except
3264 (Birds. Rev. Stat. (1896), p. 717, those presented to the clerk. Sherry
59). v. Carey, 18 Civ. Proc. Rep. (N. Y.
North Dakota. Rev. Codes (1895), Super. Ct.) 256.
5586. 5. California. Code Civ. Proc.
2. New York. Code Civ. Proc., (1897), 1033.
6 3265 (Birds. Rev. Stat. (1896), p. 717, /JaAo. Rev. Stat. (1887), 4912.
6l). Montana. Code Civ. Proc. (1895),
North Dakota. Rev. Codes (1895), 1867.
5587. (7taA. Rev. Stat. (1898). 3350.
3. The moving affidavit for retaxa- See also Hill's Anno. Laws Oregon
tion must show specifically the items (1892), 557.
objected to. Jermain v. Lake Shore,
etc., R. Co., 5 L. Bui. (N. Y.) 58.
807 Volume 5.
6568. COSTS. 6568.
In the Superior Court of the County of Los Angeles, State of
California.
John Doe, plaintiff, }
against V Notice. Relaxation of Costs.
Richard Roe, defendant. )
Take notice that the above named defendant, being dissatisfied
with the bill of costs claimed by the plaintiff and served upon the
said defendant on the tenth day of May, i897, because {Here specify
the grounds of objection and the items objected to), will move before the
Honorable John Marshall, at chambers?- on the fourteenth* day of May,
i8#7, at ten o'clock in the fore noon, for an order annulling the bill of
costs so served upon the defendant and filed by the plaintiff in the
office of the clerk of this county and taxing and adjusting the costs in
this cause anew.
May 10, iS97. T ^, Cy ^ , , ,,
Joseph Story, Defendant s Attorney.
To Jeremiah Mason, Esq.,
Plaintiff's Attorney.
(3) MOTION.
(a) In General.
Form No. 6568.
(Precedent in Teagarden v. Commissioners, 49 Kan. 148.)*
[State of Kansas, \ In the District Court in and for the County
Linn County. f ss ' and State aforesaid.
Joseph Teagarden et al., ^
against , I Motion .to Retax Costs.]*
The Board of Commissioners of (
Linn County.
Now comes the defendant and moves the court to retax the costs
in this case and tax them against the plaintiffs, instead of the defend-
ant, and render judgment therefor against said plaintiffs, for the
reason that this action is an appeal from the decision and award of
the county commissioners of said county granting to the plaintiffs
25 damages for the location and establishment of a public highway
over and across the lands of said plaintiffs; that a warrant of said
county, duly and legally made and executed by said county, was ten-
dered to said plaintiffs, in the sum of $25, in payment of said damages,
before this case was appealed to the district court, and said warrant
remained in the office of the county clerk of said county, subject
to the order of said plaintiffs; that the said plaintiffs refused to
1. Costs may be taxed upon such ap- which to make his motion. Cal. Code
plication either by " the court in which Civ. Proc. (1897), 1033.
the judgment was rendered or by the 8. The motion for relaxation in this
judge thereof at chambers." Cal. Code case was sustained, and the judgment
Civ. Proc. (1897), 1033. affirmed by the supreme court.
2. The party dissatisfied with the 4. The words enclosed by [ ] will not
costs claimed has five days after the be found in the reported case, but have
notice of the filing of the bill of costs in been added to render the form complete.
808 Volume 5.
6569. COSTS. 6570.
accept the same and prosecuted their appeal to a final judgment in
this court; that said warrant was at all times subject to the order and
disposition of said plaintiffs, from the time of its execution and tender
to the plaintiffs up to the verdict and judgment upon appeal to this
court; that the plaintiffs, upon the trial of this case upon appeal to
this court, recovered a judgment for $20 and no more.
[Joseph Story, Attorney for Defendants.] 1
() For Relaxation and Forfeiture of Clerks Fees.
Form No. 6569.*
Pulaski Circuit Court.
John Doe, plaintiff,
against
Richard Roe, defendant.
On this tenth day of May, iB97, comes John Doe, by his attorney,
and says that he is aggrieved by the taxation of costs against him by
the clerk of this court in the above entitled action, for (Here state the
error made by the clerk in taxing the costs), and upon these grounds he
moves the court that the costs herein be retaxed by the court by (Here
specify the changes to be made in the relaxation), and further, since it
appears by the plaintiff's own affidavit herewith filed that he has
paid an unlawful charge by reason of the said first taxation, the
plaintiff moves the honorable court to declare that the said clerk of
this court shall forfeit all his fees and shall also pay to the plaintiff by
his said taxation aggrieved the whole amount which he has paid by
reason of the allowing of such unlawful charge, such amount being
the sum of thirty dollars.
Jeremiah Mason, Plaintiff's Attorney.
(4) ORDER.
Form No. 6570.*
( Title of court and cause as in Form No. 6542.)
Upon reading and filing the affidavit of Joseph Story, verified the
1. The words enclosed by [ ] will not In Iowa and Missouri the clerk's fees
be found in the reported case, but are not forfeited, but the clerk pays
have been added to render the form the costs of relaxation and reimburses
complete. the party for the unlawful charge. Iowa
2. The party who has paid an unlaw- Code (1897), 3864; Mo. Rev. Stat.
ful charge by reason of an error in tax- (1889), 2941.
ation by the clerk obtains an order In Neiv Mexico the officer in fault
forfeiting the clerk's fees and directing pays to the party injured three times
the clerk to reimburse the party for the amount of the charges, the collec-
the payment required by the unlawful tion of which penalty is enforced by
taxation. execution. N. Mex. Comp. Laws
Arkansas. Sand. & H. Dig. (1894), (1884), 2213.
809. 3. This form is adapted from the
Colorado. Mills' Anno. Stat. (1891), facts in McLean v. Hoyt, 56 How. Pr.
ti 693. (N. Y. Supreme Ct.) 351.
Illinois. Starr & C. Anno. Stat. Precedents Striking out Items. In
(1896), p. 1076, par. 26. Woodland Bank v. Hiatt, 59 Cal. 582,
809 Volume 5.
6571. COSTS. 6571*
seventeenth day of May, iS97, with the bill of costs thereto annexed,
and the affidavits of Samuel Short and William West, verified respec-
tively on the sixth day of May, iS97, and the eighteenth day of May,
i897, and upon hearing Joseph Story, of counsel for the defendant,
and Jeremiah Mason, of counsel for the plaintiff, in opposition, upon
motion of said counsel for defendant, Ordered:
That the adjustment of costs in this action be set aside, and that
the bill of costs be adjusted and amended by striking therefrom the
following items, to wit: (Here specify the items to be stricken out), and
that the judgment entered herein be amended and reduced as to
costs by taking therefrom sixty dollars, and that the clerk of this
court amend the judgment roll and docket accordingly.
Enter: J.M.,}. S. C.
c. Where Items have been Omitted.
(1) MOTION.
Form No. 6571.
(Precedent in Nichols v. Marsh, 131 U. S. 402.)*
[In the Supreme Court of the United States of America.
October Term, 1888.
Elon A. Marsh, Minard Lefever^\
and James Scott 1 In Equity.
against ( No. 72.
Nichols, Shepard and Company. J
In the Supreme Court of the United States of America.
October Term, iS88.
Nichols, Shepard and Company \
against I In Equity.
Elon A. Marsh, Minard Lefever j No. 95. ] 2
and James Scott. J
And now comes the said defendant Nichols, Shepard & Co., by
Charles F. Burton, their solicitor, and moves the court now here,
the order, omitting the formal parts, evidence that was introduced on the
was as follows: hearing of said motion; and in con-
" It is ordered, that in the motion to sideration of the same, the court sus-
tax costs, the item of eighty dollars and tained the motion of plaintiff, and
sixty-five cents for transcribing testi- ordered and adjudged that the clerk of
mony be stricken out, and the costs the Neosho county district court relax
fixed at seventy-one dollars and twenty the costs in said cause by assessing
cents." against defendant and in favor of
By Adding Items. In Clark v. plaintiff the costs of the witnesses
White, 17 Kan. 181, the order adding mentioned and referred to in said
items which was made upon an agreed agreed statement, the same to be in-
statement of facts was as follows: eluded in plaintiff's judgment against
" And thereupon at the April Term, defendant."
187^, of said Neosho county district 1. For the order see infra, Form No.
court, the said motion of plaintiff 6572. See also Tenn. Code (1896),
named in the foregoing agreed state- 4953.
ment of facts came on for hearing be- 2. The words and figures enclosed
fore said court, and was submitted, by [ ] will not found in the reported
heard and determined on the said case, but have been added to render
agreed statement, which was all the the form complete.
810 Volume 5.
6572. COSTS. 6573.
that they, the said Nichols, Shepard &> Co., do recover against the
said Elon A. Marsh, Minard Lefever and James Scott, as costs to
be taxed in their favor, one-half of the amount required for printing
the record and supervising the printing of the record in said causes,
in addition to the amount, taxable and to be taxed in their favor, in
the above entitled cause.
This motion is based on the record in said causes and on the affi-
davit 1 of Charles F. Burton, hereto attached, and will be brought on
for hearing on Monday, the 25th day of February, at the opening of
said court.
To R. A. Parker, Esq.,
Solicitor for Marsh, Lefever and Scott.
Charles F. Burton,
Solicitor for Nichols, Shepard 6* Co.
(2) ORDER.
Form No. 6572.
(Precedent in Nichols v. Marsh, 131 U. S. 403.)
[In the Supreme Court of the United States of America.
October Term, \%88.
Nichols, Shepard and Company "]
against ( In Equity.
Elon A. Marsh, Minard Lefever (No. P5.] 2
and James Scott. \
On consideration of the motion for a relaxation of costs in this
cause, and of the argument of counsel thereupon, had as well in sup-
port of as against the same:
It is now here ordered by the court that the amount advanced by
the appellants in this cause toward printing the record be recover-
able by them from the appellees herein.
IV. ADDITIONAL ALLOWANCE. 3
1. Notice of Motion.
1. The affidavit was in the words and Nichols, Shepard &> Co., as one-half the
figures following, to wit: cost of printing the record in said cases.
" State and Eastern District of ) Charles F. Burton.
Michigan, > ss. Subscribed and sworn to before me
County of Wayne. ) this zist day of January, i8<?9.
Charles F. Burton, duly sworn, de- (SEAL) Charles II. Fisk,
poses and says, that he is the solicitor Notary Public,
for Nichols, SheparJ or> Co., in the Wayne County, Michigan."
above entitled appeal and cross ap- 2. The words and figures enclosed by
peal, and that in response to the re- [ ] will not be found in the reported
quest from the clerk of this court, case, but have been added to render
he sent to said clerk, on the idth day the form complete.
of November, iBSf, the sum of two hun- 3. California. In the city and
dred and seventy-five dollars, which the county of San Francisco the prevailing
said clerk notified him was the amount party is allowed five per cent, of the
of money required to defray the por- amount recovered together with any
tion of the expense properly to be sum by him so paid in the cause as costs
borne in the first instance, by said and disbursements to be included in the
811 Volume 5.
6573. COSTS. 6574.
Form No. 6573.'
Supreme Court, City and County of New York.
John Doe, plaintiff, i
against
Richard Roe, defendant. )
Please take notice that upon the affidavit of Jeremiah Mason, veri-
fied the tenth day of May, iS97, and upon the certificate of Richard
Styles, referee herein, and on all the proceedings in this cause, the
plaintiff (or defendant) will apply to this court at a special term to be
held by the Honorable John Marshall, justice, at the New York
County Court-house, on the nineteenth day of May, iS97, at ten o'clock
in the forenoon, or as soon thereafter as counsel can be heard, for an
order granting him an additional allowance for costs, under pro-
vision of section 3253 of the Code of Civil Procedure.
May 11, 1 897.
Jeremiah Mason, Attorney for Plaintiff.
Office and P. O. address, 111 Broadway, New York City.
To Joseph Story, Attorney for Defendant.
2. Certificate of Referee.
Form No. 6574.'
Supreme Court, City and County of New York.
John Doe, plaintiff, }
against
Richard Roe, defendant. )
I, Richard Styles, the referee before whom this cause was tried, do
judgment against the adverse party; 7; Mann v. Tyler, 6 How. Pr. (N. Y.
provided said five per cent, shall be Supreme Ct.) 236; Howe v. Muir, 4
allowed only in litigated cases and shall How. Pr. (N. Y. Supreme Ct.) 252.
not exceed the sum of one hundred 2. Where the trial has been by refer-
dollars on any one judgment. "An ence, it is the best practice to present
Act to regulate fees in the city and among the motion papers a certificate
county of San Francisco," 6 (Stat. by the referee. Fox v. Gould, 5 How.
1866, p. 66). The law is still in force Pr. (N. Y. Supreme Ct.) 280; Gould v.
notwithstanding the adoption of the Chapin, 4 How. Pr. (N. Y. Supreme Ct.)
codes. Whitaker v. Haynes, 49 Cal. 186; Main v. Pope, 16 How. Pr. (N. Y.
596. Supreme Ct.)27i; Dode v. Manhattan
Minnesota. For a statute allowing R. Co., 70 Hun (N. Y.) 376. In the lat-
additional allowance in actions for the tercase the court said: " Upon a motion
recovery of money only where an made for an additional allowance the
appeal was taken for delay merely, see plaintiff failed to produce a certificate
Minn. Stat. (1894), 5517. of the referee that the case was difficult
1. The motion for an additional and extraordinary. It is usual, and we
allowance is usually made at the trial, regard it as the better practice, not to
and when so made notice of motion is grant an additional allowance without
unnecessary. Mitchell v . Hall, 7 How. a certificate of the referee who tried the
Pr. (N. Y. Supreme Ct.)49i; Mann v. case, but the absence of it is not juris-
Tyler, 6 How. Pr. (N. Y. Supreme Ct.) dictional and does not deprive the court
236; Saratoga, etc., R. Co. t>. McCoy, of the power to consider the motion,
9 How. Pr. (N. Y. Supreme Ct.) 339. and determine for itself whether the
When the motion is made after trial, case falls within the language of the
however, it must be upon notice, Code." In the last case the court
Woodruff v. New York, etc., R. Co., granted the certificate and its action
(Buffalo Super. Ct.) 31 N. Y. St. Rep. was sustained in 140 N. Y. 637.
812 Volume 5.
6575. COSTS. 6576.
hereby certify that the investigation or trial of this cause involved
difficult questions of law which required and evidently received much
examination and preparation on the part of the counsel of the respec-
tive parties, and I further certify that said difficult and extraordinary
questions of law were {Here state the nature of the questions itwolved).
May 19, iS97.
Richard Styles.
3. Affidavits. 1
a. In Support of Motion.
Form No. 6575.'
( Title of court and cause, and venue as in Form No. 6476.)
Jeremiah Mason, being duly sworn, deposes and says:
I. That he was the attorney and counsel for the plaintiff in the
above entitled action.
II. That the issues involved and litigated were {Here state their
nature, and number them consecutively), and that said issues were liti-
gated with great bitterness.
III. That a large number of witnesses, namely, twenty-jive, were
called on the part of the defendant, and that a large number of wit-
nesses, namely, fifteen, were necessarily called on the part of the
plaintiff.
IV. That the issues above mentioned, numbered 2 and 8, were
questions which involved the examination and cross-examination of
expert witnesses, and that deponent, as counsel for the plaintiff, was
obliged to make a careful study of the subject involved in these
issues, and that the time spent by deponent in the preparation for
trying said issues was about thirty days. 3
V. That to secure the testimony in question and procure the
attendance of witnesses, plaintiff was obliged to spend as follows:
{Here itemize the expenditures.)
VI. That judgment was rendered herein for the plaintiff on the
fourteenth day of May, i&97, and that the costs herein have not yet
been taxed and adjusted. 4
{Signature and jurat as in Form No. 6476.)
b. In Opposition to Motion.
Form No. 6576.*
{Title of court, cause and venue as in Form No. 6476.)
1. For forms of affidavits, generally, by them, or time or labor consumed by
consult the title AFFIDAVITS, vol. I, p. both counsel or servants; the time con-
548. sumed on the trial, the number of trials,
2. This form is based on the facts in postponements and all arguments at the
the case of McCulloch v. Dobson, general term, whether there was a long
(Supreme Ct.) 15 N. Y. Supp. 602; account involved or a reference had."
affirmed 133 N. Y. 114. 4. Application cannot be made after
3. In Gori v. Smith, 3 Abb. Pr. N. S. the costs are finally taxed. Hudson v.
(N. Y. Super. Ct.) 51, it was said that Guttenberg, 9 Abb. N. Cas. (Brooklyn
"parties claiming any additional sum City Ct.) 415.
ought to furnish the court with some 5. This form is based on the facts in
specific facts, such as moneys actually Gould v. Chapin, 4 How. Pr. (N. Y.
expended or liabilities actually incurred Supreme Ct.) 185.
813 Volume 5.
6577. COSTS. 6578.
Joseph Story, being duly sworn, deposes and says:
I. That he was attorney and counsel for the defendant in the above
entitled action.
II. That he denies that the case was difficult or extraordinary;
that the only questions of fact or law which were controverted were
{Here specify them).
III. That the time occupied in the trial did not exceed two hours,
and that the summing up on both sides occupied only from two to
three hours.
IV. That the cause was decided by referee within an hour after it
was submitted to him.
V. That a referee's certificate was obtained by the plaintiff exparte
without notice to defendant's attorney or application therefor.
{Signature and jurat as in Form No. 6476. )
4. Order.
Form No. 6577.'
{Title of court and cause as in Form No. 6543.)
Upon reading and filing the affidavit of Jeremiah Mason, verified
the nineteenth day of May, i8#7, and the affidavit of Joseph Story, in
opposition, verified the nineteenth day of May, i8#7, and upon read-
ing and filing the certificate of the referee herein, granted the seven-
teenth day of May, i8#7, and upon all the papers filed in this action, by
which it appears that the plaintiff has recovered the sum of three
thousand dollars, that a defense was interposed, but that the case
was difficult and extraordinary, Ordered:
That the plaintiff be and is hereby allowed five per cent, upon the
amount of such recovery as an additional allowance above the usual
costs.
Enter: /. M., J. S. C.
V. AWARD OF COSTS.
1. Against Parties,
a. Plaintiff.
Form No. 6578.
(Precedent in Haskins v. Wallet, 63 Tex. 215.)
Henry Wallet }
No. IJtS. v.
H. H. Brockman. )
In this cause the plaintiff failing to appear and prosecute the same, it
is ordered by the court that this cause be dismissed and that the
plaintiff pay all costs in this behalf expended, for which execution issue.
H. Clay Pleasant,
Judge D. C, K. C.
1. New York. Birds. Rev. Stat. (1896), p. 714, 48.
814 Volume 5.
6579. COSTS. 6580.
b. Defendant.
Form No. 6579.
( Title of court and cause as in Form No. 6543.)
It appearing that the summons and complaint in this action were
duly and personally served upon the above named defendant on the
twenty-ninth day of April, i8#7, and that the time to appear and plead
has fully expired, and further that said defendant has neither
appeared nor pleaded, now the court having computed the amount
which the plaintiff ought to recover and is entitled to recover herein,
and damages having been duly assessed as below stated, upon motion
of Jeremiah Mason, plaintiff's attorney, Ordered:
That John Doe, plaintiff, recover of said Richard Roe, defendant,
the sum oione hundred dollars and x dollars, costs and disburse-
ments, said sums amounting in all to dollars.
Enter: /. M., J. S. C.
2. Against Persons not Parties.
a. Attorney.
(1) FOR NONRESIDENT PLAINTIFF.*
Form No. 6580.*
The State of Alabama, \ Circuit Court.
Tuscaloosa County. f October Term, iS96.
John Doe, plaintiff,
against
Richard Roe, defendant.
This day comes the defendant Richard Roe, by his attorney, and
moves the court for an award and order of judgment for costs of
fifty-two dollars and eighty-three cents in this suit, against Jeremiah
Mason, Esq., upon the ground that he has prosecuted this suit with-
out requiring said plaintiff to give and without said plaintiff having
1. The order for costs against the Illinois. Starr & C. Anno. Stat.
defendant is included in and a part of (1896), p. 1066, par. 3.
the judgment. The amount of costs is Kentucky. Bullitt'sCiv. Code (1895),
left blank, to be filled by the taxing 621.
officer. Minnesota. Stat. (1894), 5519.
2. Statutes exist in many of the Missouri. Rev. Stat. (1889), 2915.
states making the attorney of a non- New York. Code Civ. Proc., 3278.
resident liable for costs in case security Oregon. Hill's Anno. Laws (1892),
is not filed by such plaintiff. 566.
Alabama. Civ. Code (1886), 2860. Wisconsin. Sanb. & B. Anno. Stat.
Arkansas. Sand. & H. Dig. (1804), (1889), 2948.
786. 8. Alabama. Civ. Code (1886),
Colorado. Mills' Anno. Stat. (1891), 2860.
675. The formal phraseology of this form
District of Columbia. Comp. Stat. is taken from the precedents in Elliott
(1894), c. 55, 30. v. Clements, 5 Ala. 471; Pratt v. Keils,
Florida. Rev. Stat. (1892), 1301. 28 Ala. 391; Wynn v. Simmons. 33 Ala.
Georgia. 2 Code (1895), 5613. 272; Barclay v. Barclay, 42 Ala. 346.
815 Volume 5.
6581. COSTS. 6581.
given security for costs, said plaintiff being a nonresident, and it is
made to appear to the satisfaction of the court by the affidavit of
defendant, sworn to they?/ day of October, j.896, that the plaintiff is
a nonresident of this state, and it appearing further from said affida-
vit and the record of this cause that a judgment has been rendered
and entered herein in favor of the defendant, entitling said defend-
ant to full costs and that said costs have been taxed in favor of the
defendant in the sum of fifty-two dollars and eighty-three cents, and
that the plaintiff herein gave no security for costs; and further that
Jeremiah Mason, Esq., counsellor of this court, prosecuted this case
in behalf of said plaintiff without requiring him to file such security
for costs; upon proof to the satisfaction of this court of due service of
notice of this motion upon said Jeremiah Mason, Esq., who being called,
came not, 1 and after hearing Joseph Story, of counsel for the defend-
ant, it is now thereupon considered and ordered by this court that
said Jeremiah Mason, Esq., within ten days from the date of the serv-
ice of a copy of this order upon him, pay to defendant herein the
said sum of fifty-two dollars and eighty-three cents, taxed as costs of
the defendant in this action together wi,th the costs by him, the
defendant, upon his motion in this behalf expended.
Dated October 8, i896.
John Marshall, Circuit Judge.
(2) WHERE SCANDALOUS AND IMPERTINENT MATTER is STRICKEN
OUT.
Form No. 6581.*
( Title of court and cause as in Form No. 6543. )
Upon reading and filing the affidavit of Jeremiah Mason, verified the
eighteenth day of May, i897, and upon reading and inspecting the answer
in this action in said affidavit mentioned, which was filed herein on
the seventeenth day of May, i897, after hearing Jeremiah Mason, of
counsel for the plaintiff, and Joseph Story, of counsel for the defend-
ant, in opposition, upon motion of Jeremiah Mason, attorney for the
plaintiff, Ordered:
I. That paragraphs IV and V of said answer be and the same are
hereby stricken out as scurrilous, irrelevant and defamatory, and as
having been maliciously and unnecessarily inserted.
II. That said Joseph Story, attorney for the defendant, be and
hereby is commanded to pay to said plaintiff's attorney, within ten
days after the service upon him of a copy of this order, ten dollars,
costs of this motion, which are hereby charged upon him personally, 3
for his misconduct in filing said answer.
Enter: /. M., J. S. C.
1. See Connoly v. Alabama, etc. R. 3. The fault of filing a scandalous or
Co., 29 Ala. 373; Barclay v. Barclay, impertinent plea usually rests with the
42 Ala. 347. attorney, and the order to pay costs is
2. This form is based on the facts in properly made against him rather than
the case of McVey v. Cantrell, 8 Hun against the party. McVeyz/. Cantrell,
(N. Y.) 522. 8 Hun (N. Y.) 522.
816 Volume 5.
6582. COSTS. 6583.
b. Against Executor, Assignee or Trustee.
(1) CERTIFICATE OF JUDGE.
Form No. 6582.'
I, John Marshall, justice of the Supreme Court, before whom trial
of this cause was had on \hzfourth day of January, \&91, do hereby
certify that at said trial it appeared that before the beginning of this
action the plaintiff duly presented to the defendant, within the time
limited, by a notice published by the defendant as prescribed by law
requiring creditors to present their claims, a demand upon the claim
in this action in question for the sum of three hundred dollars; 2 and
that the defendant unreasonably resisted and neglected to pay said
claim, viz. : {Here specify the facts appearing upon the trial. ^
Dated January J+, i&91.
John Marshall, ].S.C.
(2) ORDER.
Form No. 6583.
At a Special Term of the Supreme Court, held at the County Court-
house in Neiv York City, on the nineteenth day of May, iS97.
Present, Hon. Roger A. Pryor, Justice.
John Doe, plaintiff,
against
Richard Roe, as executor of the estate of
Richard Styles, deceased, defendant.
Upon reading and filing the affidavit of Jeremiah Mason, verified the
seventeenth day of May, \W1, and the certificate 4 of the Honorable
John Marshall, justice, given the twelfth day of May, i897, and upon all
the proceedings in this cause, from which it appears that prior to the
beginning of this action the plaintiff made due demand upon the de-
fendant within the duration of the time prescribed by the defendant
in a notice published pursuant to law, requiring creditors to present
their claim against the decedent, said demand being for an amount
not in excess of the sum recovered in this action, and based upon
the claim upon which recovery is here had; but the defendant unwar-
rantably resisted and refused to pay the same; and further that the
plaintiff offered to refer the claim in question according to the stat-
ute, but that the defendant wholly neglected and refused so to refer,
and that the plaintiff has now recovered a judgment herein for four
1. New York. Code Civ. Proc., facts fully and fairly, they may be
1836. shown by affidavits. Ely v. Taylor, 42
2. Or the order may continue from Hun (N. Y.) 205.
this point as follows: " refused, though 4. Where a rule of costs is claimed
the defendant made request therefor, to against an executor because he refused
refer the claim as prescribed by law." to refer pr because the payment of the
3. When a case is charged to have claim was unreasonably resisted or re-
been unreasonably defended, the facts jected, the certificate of the judge as
which appear upon the trial may prop- to these facts is absolutely necessary,
erly be referred to; and in such cases, Matson v. Abbey, 141 N. Y. 179; Hal-
if the certificate does not state all the lock v. Bacon, 64 Hun (N. Y.) 90.
5 E. of F. P. 52. 817 Volumes.
6584. COSTS. 6584.
hundred dollars upon the tenth day of May, i897. Now, upon reading
and filing proof of due service of notice of this motion 1 upon Joseph
Story, attorney for the defendant, and on motion of Jeremiah Mason,
attorney for plaintiff, Ordered:
That full costs be awarded to the plaintiff herein, and that the
clerk of this court be directed to tax the same, said costs to be paid
out of the estate of the decedent (or said costs to be paid by the defend-
ant personally)?
Enter: R. A. P., J. S. C.
e. Against Person Beneficially Interested. 3
(1) AFFIDAVIT IN SUPPORT OF MOTION.
Form No. 6 5 8 4 . 4
(Title of court and cause, and venue as in Form No. 6476.)
Richard Roe, being duly sworn, deposes and says:
I. That he is the defendant in the above entitled action.
II. That the action was commenced on the fourteenth day of June,
1888, issues joined on the sixteenth day of June, 1888, and the case
tried before the Honorable P. Henry Dugre and a jury on the twelfth
day of July, i890, and that a verdict was rendered in favor of the
plaintiff in the sum of six cents.
III. That the costs of the action were thereafter duly taxed in
favor of the defendant, and judgment entered in favor of the defend-
ant on the tenth day of July, i890, for one hundred and thirty- four dol-
lars and ninety-four cents, and that on the tenth day of Angust, i890,
said judgment was amended and entered nunc pro tune by deducting
therefrom said six cents awarded to the plaintiff by the jury.
IV. That execution was issued on said judgment on the fourth day
of September, \WO, and thereafter on the fifteenth day of September,
i890, was returned wholly unsatisfied. 5
V. That prior to the beginning of this action, and on or about the
second day of January, 1888, the claim upon which this action was
founded was owned by one Edward Woodruff, a nonresident of this
state, residing at Rahway, New Jersey, that on or about the said date
1. This order can be obtained only der against the party beneficially in-
by motion upon notice. It cannot be terested in the action to pay the costs,
granted ex parle. Slocum v. Barry, 38 Alabama. Civ. Code (1886), $ 2845.
N. Y. 46; Dodge v. Crandall, 30 N. Y. Maryland. Pub. Gen. Laws (1888),
294; Fish v. Crane, 9 Abb. Pr. N. S. art. 24, 8.
(M. Y. Supreme Ct.) 252; Schenck v. Missouri. Rev. Stat. (1889), 2930.
Rickaby, 20 Civ. Proc. Rep. (N. Y. Su- South Carolina. Code Civ. Proc.
preme Ct.) 384. (1893), 333-
2. Whether the costs should be Virginia. Code (1887), 3546.
charged against the defendant person- 4. This form, drawn under N. Y. Code
ally or against the estate he represents Civ. Proc., 3247, is adapted from the
may depend upon other facts appear- facts in the case of Pendleton v. John-
ing on the trial which maybe shown son, 21 Civ. Proc. Rep. (N. Y. Super,
by affidavits if necessary. Ely v. Tay- Ct.) 272.
lor, 42 Hun (N. Y.) 205. 5. The return of the execution un-
3. In several states there is express satisfied is sufficient evidence of in-
statutory provision for entering the or- ability to collect from the assignee,
818 Volume 5.
6585. COSTS. 6586.
the said claim was assigned by said Edward Woodruff to the plaintiff
of record herein in order that said plaintiff might sue thereon and to
avoid the necessity of giving security for costs, but that said Edward
Woodruff retained and still retains the beneficial interest in said claim.
VI. That the plaintiff herein stated to the deponent on several
occasions that he had no interest in the claim, and that the pro-
ceeds thereof applied to said Edward Woodruff
{Signature and jurat as in Form No. 6476 .)
(2) NOTICE OF MOTION.
Form No. 6585.
( Title of court and cause as in Form No. 6476.)
Please take notice that upon the annexed affidavit of Richard Roe,
verified on the smentk day of May, iS97, and upon all the proceed-
ings in this action, the defendant will move at a special term of the
Supreme Court to be held by the Honorable John Marshall, justice,
on the nineteenth day of May, iS97, for an order directing you to pay
to the defendant's attorney 1 the costs awarded to the defendant in
this action, upon the ground that you are the person beneficially
interested in the cause herein and the wrongful promoter of said
action.
e, signature and address as in Form No. 6489. )
(3) ORDER.
Form No. 6586.
( Title of court and cause as in Form No. 6543. )
Upon reading and filing the affidavit of Richard Roe, verified the
thirty-first day of May, i&91, and upon all the proceedings in this
cause, from which it appears that prior to the commencement of this
action one Edward Woodruff assigned to the plaintiff the legal title
to the claim herein sued, but retained the equitable and beneficial
interest therein, and that upon \.^ fifteenth day of May, iS91, the
defendant recovered judgment for costs against the plaintiff herein
in the sum of one hundred and thirty-four dollars and eighty-eight cents,
which costs were duly taxed and entered in the judgment, 2 and
execution thereon returned wholly unsatisfied on the twentieth day of
August, i&91; now upon hearing Joseph Story, of counsel for defend-
ant, and upon reading and filing proof of due personal service of
notice of this motion upon said Edward Woodruff, and no one appear-
ing in opposition. Ordered:
I. That said Edward Woodruff, as the person beneficially interested
Perrigo v. Dowdall, 25 Hun (N. Y.) to apply for an order directing the pay-
234. ment of the costs to the attorneys.
1. This form is adapted from Metro- 2. An order against a third person
politan Addressing, etc., Co. v. Good- for costs as a party beneficially inter-
enough, 21 Civ. Proc. Rep. (N. Y. Super, ested cannot be made until after judg-
Ct.) 268, in which case it was held that ment against the nominal party is
the judgment for costs belonged to the perfected. Fredericks v. Niver, 28
attorneys and that it was not a mistake Hun (N. Y.) 417.
819 Volume 5.
6587. COSTS. 6587.
in the prosecution of this action and connected with said prosecution,
pay to Joseph Story, attorney for the defendant, Richard .Roe, within
Jive days after a copy of this order shall be served upon him, the
costs recovered by said defendant, Richard Roe, against the plaintiff
herein, said costs amounting to the sum of one hundred and thirty-four
dollars and eighty-eight cents, with interest from the tenth day of July,
\WO, up to the date of such payment.
II. That the defendant have ten dollars costs of this motion against
said Edward Woodruff.
And if said Edward Woodruff 'shall fail to pay said costs and interest
within five days, Ordered further, that process issue from this court
to enforce this order.
Enter: D. M., J. S. C.
. Motion against Security for Costs of Intervenors.
Form No. 6587.
(Precedent in Craig v. Leitensdorfer, 127 U. S. 768.)'
[ William Craig, Appellant,
against [ In Equity, No. 310.} 2
Thomas Leitensdorfer.
And now comes the appellant by his solicitors Benj, F. Butler and
O. D. Barrett, and gives this court to be informed, that this cause
having been heard and determined by said court and a mandate to
the Circuit Court being about to be sent down, the matter of certain
costs still remains to be adjusted and settled in this cause. That is
to say:
Leann S. King and Thomas J. Allen, who, by interlocutory order of
said court passed the 18th day of January, 1886, were permitted to
be heard in court, or by brief, in said cause, as " persons who claimed
to have acquired title to the premises in dispute, or to some part
thereof, from or through the appellee, since said suit was begun," on
condition each should file a stipulation in the cause with security to
the satisfaction of the clerk to pay all costs and expenses, accruing
on said appeal since the last term of the court, that may be finally
adjudged against the appellee, including the cost of printing the
record and the clerk's fees for supervising. And said King and said
Allen each filed such stipulation with instruments of security duly
executed by each, the instrument filed by said King having the signa-
ture and seal of John N. Smith and Charles R. Lockridge of Kansas
City, Mo., as sureties, thereto affixed in the full and just sum of three
thousand dollars, which said security in the matter of said King was
satisfactory to the clerk of this court. Said Allen did file like security,
having executed under his hand and seal, and under the hands and
seals of Charles R. Haywood and A. D. Wilson of Arapahoe Court,
1. Upon this motion an order was 2. The words and figures enclosed by
granted that the sureties for the inter- [ ] will not be found in the reported
venors pay the costs taxed before the case, but have been added to render
last day of the term, and that if they the form complete,
failed so to do a writ of attachment
should issue to enforce the payment.
820 Volume 5.
6588. COSTS. 6588.
Colorado, in the full and just sum of three thousand dollars, which
security in the matter of said Allen was satisfactory to the clerk of
this court. All which now fully appears in the copies of said securi-
ties hereto annexed marked A. D.
And the court here is further informed that judgment having been
rendered by this court in this case in favor of the appellant, that the
costs since the October term, iS#4, including the costs of printing the
record and the clerk's fees for supervising, which costs, amounting to
the full and just sum of eleven hundred fifteen dollars and two cents,
($1115.02), as taxed by said clerk, and for the payment of which said
Allen and said King and their sureties were jointly and legally bound,
are long since due and unpaid, although duly taxed; of all of which
said King and said Allen have had due and reasonable notice through
their attorneys of record in this cause, but neither of them has paid
said costs, or any part thereof, or filed with said clerk any reason
why they should not so do.
Wherefore the appellant moves the court here to estreat said instru-
ments of security for said costs, and order judgment to be entered
thereon as taxed by said clerk and proper process of attachment to
issue against all said persons, jointly and severally, so that the judg-
ment of this court may be rendered effectual, and said costs may be
paid to the Clerk of this Court.
Benj. F. Butler,
O. D. Barrett,
Solicitors for the Counsel.
e. Against Prosecutor in Criminal Action. 1
Form No. 6588.
The State of Alabama \
against v Prosecution for (describe offense).
Richard Roe. )
In this case, the prosecution appearing to be malicious and frivolous,
the costs are taxed against John Doe, the prosecutor.
John Marshall,
Judge of the County Court.
1. Statutes requiring the unsuccess- Idaho. Rev. Stat. (1887), 8302.
ful prosecutor of a criminal action to Iowa. Code (1897), 5238, 5606.
pay costs exist in many states. His Maine. Rev. Stat. (1882), c. 82,
liability depends sometimes upon a 125.
certificate that the prosecution was ma- Michigan. How. Anno. Stat. (1882),
Miciousor without probable cause, some- 7110, 9063.
times upon the absence of the certificate North Dakota. Rev. Codes (1895),
that the prosecution was founded upon 7965.
probable cause and sometimes upon Ohio. Bates' Anno. Stat. (1897),
the mere failure of the prosecution. 6471.
Alabama. Crim. Code (1886), 4355. Tennessee. Code (1896), 7611-
Arizona. Pen. Code (1887), 2229, 7613.
2230. Virginia. Code (1887), 4081.
Colorado. Mills Anno. Stat. (1891), Washington. 2 Hill's Anno. Stat.
696- (1891), 1224.
Georgia. 3 Code (1895), 1082.
821 Volume 5.
6589. COSTS. 6589.
VI. ACTION TO RECOVER COSTS AGAINST PARTY DISCONTINUING
ACTION.
Form No. 6589.
(Precedent in Griffin v. Farwell, 20 Vt. 151.)'
[State of Vermont, ) To any sheriff or constable in the state or to
Rutland County, ss: \ Daniel Doe, an indifferent person, Greeting:
By the authority of the state of Vermont, you are hereby com-
manded to attach the goods, chattels or estate of Richard Farwell,
of Rutland, in the county of Rutland, to the value of twenty dollars,
and him notify thereof according to law; and also notify him to
appear before the County Court next to be held at Rutland, within
and for said county of Rutland, on the second Tuesday of June, i8^7,
and also notify him to cause his appearance herein to be entered with
the clerk of said court, on or before the expiration si forty-two days
from the date thereof, then and there, in said court, to answer to
John Griffin of Rutland, in a plea of trespass on the case] 2 for that,
to wit, on or about the first day of May, i&5, at Westhaven in the
county of Rutland, the defendant, without any cause of action, prayed
out a writ of attachment in his favor against the plaintiff, in due
form of law, signed by William C. Kittridge, justice of the peace in
and for the county of Rutland aforesaid, and returnable before said
justice Kittridge, at Westhaven aforesaid, on the second day of June,
i8^J; and afterwards, to wit, on or about the fifteenth day of May,
i8^5, the defendant procured to the said writ to be legally served on
the plaintiff, at Fairfax in the county of Franklin, by Reuben Dewey,
who then was and still is legal constable of the town of Fairfax
aforesaid, by arresting the body of the plaintiff thereon, and after
the service of said writ on said plaintiff, and before the return day
thereof, he, the plaintiff, incurred great costs and expenses and
charges in procuring evidence, taking depositions and retaining
counsel to defend said suit, to wit, the sum of twenty dollars; and
after the plaintiff had incurred the said costs and expenses, as
aforesaid, and before the return day of said writ, to wit, on the
thirtieth day of May, iS45, the defendant, without the consent of the
plaintiff, and against his will, and with a view to prevent the plain-
tiff from recovering his said costs, so incurred in preparing to defend
said suit, as aforesaid, withdrew and discontinued his said suit against
the plaintiff, and neglected and refused to return said writ to said
justice Kittridge, and wholly neglected and refused to enter and
prosecute his said suit against the plaintiff; whereby the plaintiff
was prevented from recovering before said justice Kittridge his said
costs, so by him incurred as aforesaid; and that the defendant has
hitherto neglected and refused to pay said costs to the plaintiff, [to
1. It was held in this case that the he had incurred in preparing his de-
plaintiff might sustain an action of tres- fense.
pass on the case against the defendant, 2. The words and figures within [ ]
and was entitled to recover at least to are not in the reported case, but have
the extent of the taxable costs which been added to complete the form.
822 Volume 5.
6590. COSTS. 6590.
the damage of the plaintiff in the sum of twenty dollars, for the
recovery of which, with just costs, the plaintiff brings suit.
Fail not, but service and return make within twenty-one days from
date.
Dated at Rutland in the county of Rutland this 8th day of May,
A. D. 18,47.
Abraham Kent, Clerk.] 1
VII. NOTICE TO RECOVER ILLEGALLY EXACTED COSTS.
Form No. 6590.*
To John Hancock, Clerk of the Circuit Court, County of Leon, Florida:
Take notice that in the Circuit Court for the county of Leon on
Friday, the fourteenth day of May, i897, John Doe will apply for an
inquiry into the validity of certain charges and fees, from him exacted
by you, the said John Hancock, in the case of John Doe against Richard
Roe in this court tried ; the said charges and fees which said John Doe
claims were invalid and excessive, being {Here specify), and in case
said charges and fees shall be found to be invalid and unlawfully
exacted, he will move for judgment against you, the said John
Hancock, according to the statute.
Jeremiah Mason, Attorney for John Doe.
1. The words and figures enclosed by 2. Florida. Rev. Stat. (1892), 1305,
[ ] will not be found in the reported subs. 2.
case, but have been added to render
the form complete.
823 Volume 5.
COUNTERCLAIM.
See the title SET-OFF AND COUNTERCLAIM.
BY WALTER R. DEDRICK.
I. MAKING COUNTERFEIT MONEY, 825.
1. Coin, 825.
a. Generally, 825.
b. Minor Coin, 829.
. Foreign Coin, 830.
(1) Generally, 830.
(2) With Intent to Export Same, 831.
d. Gilding Coin, 831.
e. Tokens in Resemblance of Coin, 832.
2. Paper Money, 832.
II. UTTERING AND PASSING COUNTERFEIT MONEY, 834.
1. Coin, 834.
a. Generally, 834.
b. Foreign Coin, 837.
c. Gilded Coin, 838.
d. Bringing Coin into the United States with Intent to
Defraud, 839.
2. Paper Money, 839.
a. Generally, 839.
b. Foreign Bank Note, 844.
III. SELLING AND BARTERING COUNTERFEIT MONEY, 845.
1. Selling, 845.
2. Advertising Green Goods, 846.
IV. HAVING COUNTERFEIT MONEY IN ONE'S POSSESSION, 847.
1. Coin, 847.
a. Generally, 847.
b. Foreign Coin, 850.
2. Paper Money, 851.
a. Generally, 851.
b. Blank and Unfinished Bank Note, 855.
c. Foreign Bank Note, 856.
V. MAKING INSTRUMENTS FOR COUNTERFEITING, 856.
824 Volume 5.
6591. COUNTERFEITING. 6591.
VI. HAVING INSTRUMENTS IN ONE'S POSSESSION, 857.
i. For Counterfeiting Coin, 857.
a. Generally, 857.
b. Foreign Coin, 859.
c. One Side Only, 86 1.
a. For Counterfeiting Gold Dust, 86 1 .
CROSS-REFERENCES.
For Forms of Indictments for Counterfeiting Trade-marks, see the title
TRADE-MARKS.
For Forms of Indictments for Kindred Offense, see the title FORGER Y.
For matters of Procedure, ge rurally, see the title COUNTERFEIT-
ING, 5 ENCYCLOPAEDIA OF PLEADING AND PRACTICE, p. 266.
I. MAKING COUNTERFEIT MONEY.
1. Coin.
a. Generally.
Form No. 6591.'
In the District Court of the United States of America for the Northern
District of Illinois.
Of the October Term, in the year of
our Lord eighteen ninety-seven.
Northern District of Illinois, set. The grand jurors for the United
States of America, inquiring within and for the Northern District of
Illinois, upon their oath present that John Doe, late of the city of
Chicago, in the county of Cook, in the district aforesaid, on they?/
day of August, in the year of our Lord one thousand eight hundred
and ninety-seven, and within the jurisdiction of this court,* unlawfully
and feloniously did falsely make, forge and counterfeit (or cause and
procure to be falsely made, forged and counterfeited} a large number, to
wit, fifty, false, forged and counterfeit gold (or silver) coins (or bars),
each in the resemblance and similitude 2 of a gold (or silver) coin (or
1. United States. Rev. Stat. (1878), coined at the mint of the United States.
5457. The court held that the words of the
2. Likeness and Similitude of Coins statute " in resemblance or similitude"
Coined at Mint. Upon an indictment, are a mere variation or exposition of
found on section 5457 of the Revised the principal and preceding words
Statutes, which states that " the defend- thereof, "falsely make, forge or coun-
ants did falsely and feloniously make, terfeit," each of which means to make
forge and counterfeit four pieces of something in the resemblance or simili-
silver coin of the coinage of the United tude of another, and that to falsely
States of America, called a dollar, con- make, forge or counterfeit a silver coin
trary to the statutes," etc., a conviction of the coinage of the United States is to
was had, and upon motion in arrest of make something in the " resemblance
judgment it was urged that the indict- or similitude" of such coin; that the
rnent did not state a crime, in that phrase " coinage of the United States"
it did not state that the coins in is the exact legal equivalent of "coined
question were made in the similitude at the mints of the United States." U.S.
and resemblance of any silver coins v. Otey, 31 Fed. Rep. 68.
825 Volume 5.
6592.
CO UNTERFEITING.
6592.
bar), coined and stamped at the mints (or assay offices') of the United
States, called an eagle' 1 (or a dollar), 2 against the peace and dignity
of the United States, and contrary to statute of the same in such case
made and provided.
Daniel Webster,
United States District Attorney.
Form No. 6592.*
In the Posey Circuit Court of Indiana, of the February Term, iS97.
State of Indiana \
against
John Doe. )
The grand jury of the county of Posey, upon their oath, do present:
that John Doe, on the first day of January, 1 857, at the county of
Intent to Defraud. The knowledge
and intent to defraud mentioned in sec-
tion 5457 of the Revised Statutes refers
to the crime of passing counterfeit
money or having same in one's posses-
sion, and an indictment for counterfeit-
ing need contain no averment as to
knowledge or intent. U. S. v. Otey,
31 Fed. Rep. 68; U. S. v. Peters, 2 Abb.
(U. S.) 494; U. S. v. Russell, 22 Fed.
Rep. 390; U. S. v. King, 5 McLean (U.
S.) 208.
1. Description of Coin. The desig-
nation in the indictment of the coins,
alleged to have been made, as coins
called fifty cent pieces and twenty-five
cent pieces, instead of the half dollar
and the quarter dollar, by which names
they are called in the act of congress,
regulating the coinage of the country,
is not a material variance, and will not
support a motion in arrest of judgment.
U. S. v. Burns, 5 McLean (U. S.) 23.
And describing coins in the alternative
form, as " fifty cent pieces or half dol-
lars," is not objectionable. U. S. v.
Burns, 5 McLean (U. S.) 23.
2. Or if bars, describing said bars,
giving weight, fineness and device
stamped thereon.
3. Indiana. Homer's Stat. (1896),
2208.
For similar statutes see as follows:
Alabama. Crim. Code (1896),
3856.
Arizona. Pen. Code (1887), 747.
Arkansas. Sand. & H. Dig. (1894),
S 1591-
California. Pen. Code (1897), 477.
Colorado. Mills' Anno. Stat. (1891),
1259.
Connecticut. Gen. Stat. (r888),
1578.
Florida. Rev. Stat. (1892), 2493.
Georgia. 3 Code (1895), 235.
Idaho. Rev. Stat. (1887), 7035.
Illinois. Starr & C. Anno. Stat.
(1896), p. 1287, par. 228.
Iowa. Code (1897), 4861.
Kansas. Gen. Stat. (1889), 2254.
Maine. Rev. Stat. (1883), C. I2IJ 2.
Maryland. Pub. Gen. Laws (1888),
P- 470, 36-
Massachusetts. Pub. Stat. (1882), c.
204, 14.
Michigan. How. Anno. Stat. (1882),
9227.
Mississippi. Anno. Code (1892),
1098.
Montana. Pen. Code (1895), 847.
Nebraska. Comp. Stat. (1897).
6815.
Nevada. Gen. Stat. (1895), 4638.
New Hampshire, Pub. Stat. (1891),
c. 274, 8.
New Jersey. Gen. Stat. (1895), p.
1081, 180.
New Mexico. Comp. Laws (1884),
794-
Ohio. Bates' Anno. Stat. (1897),
7099.
Oregon. Hill's Anno. Laws (1892),
1813.
Pennsylvania. Pepp. & L. Dig.
(1894), p. 1138, 99.
Rhode Island. Gen. Laws (1896), c.
280, 7.
Tennessee. Code (1896), 6614,
6619.
Utah. Rev. Stat. (1898), 4350.
Vermont. Stat. (1894), 4984.
Virginia. Code (1887), 3735.
Washington. Pen. Code (1891),
66.
West Virginia. Code (1891), c. 146,
3-
26 Volume 5.
6593. COUNTERFEITING. 6593.
Posey aforesaid, unlawfully and feloniously, did falsely forge and
counterfeit fen 1 pieces of coin, each piece in the likeness and simili-
tude of the gold (or silver) coin of the United States, called a dollar?
and at that time current in the state of Indiana? with intent to
defraud some person or persons to the grand jury unknown, contrary
to the form of the statute in such case made and provided, and against
the peace and dignity of the state of Indiana.
Daniel Webster ; Prosecuting Attorney.
Form No. 6593.
(Precedent in State v. Griffin, 18 Vt. 199.)
[State of Vermont, \
Addison County, j
Be it remembered, that at a County Court begun and holden at
Middlebury, within and for the county of Addison, on the first Tuesday
of June, in the year of our Lord one thousand eight hundred and
forty-five, the grand jurors within and for the body of the county of
Addison aforesaid, now here in court duly impaneled and sworn, upon
their oath present that James Griffin, at Weybridge in the county of
Addison aforesaid,] 4 with intent the good people of this state andx>f
the United States to deceive and defraud, with force and arms, on
the tenth day of April A. D. 184^, ten pieces of false, forged and coun-
f::it coin and money, of pewter, lead, tin and zinc and other mixed
metals, in the similitude of the good, legal and current money and
silver coins of the United States, [which are current by law and usage
in this state,] 5 called "half dollars, " then and there unlawfully, and
Wisconsin. Sanb. & B. Anno. Stat. tions thereon. Peek v. State, 2 Humph.
(1889), 4459. (Tenn.) 78. See also U. S. v. Otey, 31
Wyoming. Rev. Stat. (1887), 925. Fed. Rep. 68; State v. Griffin, 18 Vt.
In Missouri it is provided that a per- 198.
son counterfeiting coin " shall, if such 3. Time When Current. An indict-
offense be not punishable by the laws ment upon a statute for counterfeiting
of the United States, on conviction, be coin "at the time current in this state
guilty," etc. Rev. Stat. (1889), by law or usage" must allege the gen-
3632. uine coin to be current when the
1. Number of Pieces. Where an in- counterfeit is made, for there is no of-
dictment alleged that the accused "did fense if the coin has gone out of circu-
falsely make, forge and counterfeit lation. State v. Shoemaker, 7 Mo. 177.
the silver coin of the United States, to 4. The words enclosed by [ ] will not
wit, the silver coin commonly known be found in the reported case, but have
and called a dollar, and did make in been added to render the form com-
the resemblance and similitude of the plete.
silver dollar (a coin of the United 5. Allegation of Currency of Coin Un-
States), certain forged and counterfeit necessary. It was held that the allega-
coins of base metal, with intent," etc.. tion enclosed by [ ] would by reasonable
it was held that the failure to state the intendment have reference to the time
number of counterfeit coins rendered of presenting the indictment instead of
the indictment insufficient. U. S. v. the time of committing the offense, and
Weikel, 8 Mont. 124. hence would be bad unless such aver-
2. Description of Coin. The indict- ment were wholly unnecessary and
ment must particularly set forth the might therefore be rejected as surplus-
kind of coin alleged to be counterfeited age, which was the case. Redfield, J.,
by denomination or name, but it is not said, " Neither the law or usage of this
necessary to set forth devices or inscrip- state can have effect to create currency;
827 Volume 5.
6594. COUNTERFEITING. 6595.
feloniously did forge, make and counterfeit, 1 contrary [to the form,
force and effect of the statute in such case made and provided, and
against the peace and dignity of the state.] 2
Form No. 6594.*
The State of Texas
against
John Doe.
In the name and by the authority of the state of Texas.
The grand jurors for the county of Freestone, state aforesaid, duly
organized as such at the October term, A. D. i896, of the District
Court for said county, upon their oaths in said court present: That
John Doe, on the first day of May, A. D. iS96, in the county and state
aforesaid, did fraudulently, with intent that the same should be
passed in this state and elsewhere, make and counterfeit fifty coins
in the semblance of true gold (or silver) coins of the denomination of
one dollar, the said counterfeited coins having in their composition a
less proportion of the precious metal aforesaid, of which the true
coin intended to be imitated is composed, than is contained in said
true coin, and which said true coin, so counterfeited as aforesaid,
then and there by law and usage passed as money in the United
States, against the peace and dignity of the state.
Andrew Jackson,
Foreman of the Grand Jury.
Form No. 6595.*
Supreme Court, Rensselaer County.
The People of the State of New York
against
John Doe.
The grand jury of the county of Rensselaer by this indictment
accuse John Doe of the crime of forgery in the second degree, com-
and we cannot suppose that the legisla- of the false and not of the true coin,
ture, in enacting the statute, had refer- the confusion of ideas arising only from
ence to any other currency, except the the ambiguous use of the word "coun-
legal currency of the United States. And terfeit" in two different senses,
in this indictment it is alleged that the 2. See supra, note 4, p. 827.
coin was in imitation of the current 3. Texas. Pen. Code (1895), arts,
money and silver coin of the United 557, 564.
States, called half-dollars. This is suf- 4. Forgery in the Second Degree. In
ficient; and the additional averment some states the statute provides that a
that they were current by law, or usage, person is guilty of forgery in the see-
in this state is only drawing a conclu- ond degree who, with intent to defraud,
sion from the general state of the laws forges any gold or silver coin, whether
of this state and the United States, of the United States or any foreign
which will always be judicially noticed state, government or country. Minn,
by the court." Stat. (1894), 6692; N. Y. Pen. Code,
1. The allegation that the defendant 511 (Birds. Rev. Stat. (1896), p. 1330,
" ten pieces of false, forged and coun- 5); N. Dak. Rev. Codes (1895), 2428.
terfeit coin," etc., " did forge, make and The territory of Oklahoma has a simi-
counterfeit," was held to be not open to lar statute, but does not denominate
the objection that the defendant was the offense forgery. See Okla. Stat.
charged with making coin in imitation (1893), 2354.
828 Volume 5.
6596. COUNTERFEITING. 6597.
mitted as follows: The said John Doe on the first day of June, A. D.
i8#7, at the city of Tray, in this county, did falsely, fraudulently and
feloniously make, forge and counterfeit ten pieces of the gold (or sil-
ver) coin of the United States, each of which said pieces was called
a dollar, with intent to defraud some person or persons to the grand
jury aforesaid unknown.
Benjamin F. Butler,
District Attorney of the County of Rensselaer.
b. Minor Coin.
Form No. 6596.'
(Commencing as in Form No. 6591, and continuing down to *) unlaw-
fully and feloniously did falsely make, forge and counterfeit (or cause
and procure to be falsely made, forged and counterfeited or willingly
aid and assist in falsely making, forging and counterfeiting) five hundred
coins,* in the resemblance and similitude 2 of the minor coinage, 3
which had theretofore been coined at the mints of the United States,
to wit, five hundred coins called five (or three or one) cent pieces,
against the peace (concluding as in Form No. 5691).
Form No. 6597.
(Bullitt's Crim. Code Ky. (1895), p. 148, No. 3.)*
Franklin Circuit Court.
The Commonwealth of Kentucky }
against
John Doe. )
The grand jury of Franklin cou/ity, in the name and by the author-
ity of \hzcommonwcalth of Kentucky, accuse John Doe of the crime of
counterfeiting, committed as follows, viz. : The said John Doe on the
first day of September, i8#7, in the county aforesaid, did counterfeit
one hundred copper coins of the United States, known as one cent
pieces, which were then passing as current money in the commonwealth
of Kentucky, with intent to defraud, against the peace and dignity of
the commonwealth of Kentucky.
1. United States. Rev. Stat. (1878), New Jersey. Gen. Stat, (1895), p.
5458. 1081, '181.
2. See supra, note 2, p. 825. Ohio. Bates' Anno. Stat. (1897), $
8. As to what are minor coins, see 7099.
U. S. Rev. Stat. (1878), 3515. Oregon. Hill's Anno. Laws (1892),
4. Kentucky. Stat. (1894), 1181. 1813.
Similar statutes exist in other states Pennsylvania. Pepp. & L. Dig.
as follows: (1894), p. 1141, 105.
Alabama. Crim. Code (1886), 3856. Tennessee. Code (1896), 6614,
Georgia. 3 Code (1895), 235. 6619.
Nebraska. Comp. Stat. (1897), Virginia. Code (1887), 3735.
6815. West Virginia. Code (1891), c. 146,
3-
829 Volume 5.
6598.
CO UNTERFEITING.
6599.
e. Foreign Coin.
(1) GENERALLY.
Form No. 6598.'
{Commencing as in Form No. 6596, and continuing down to *) in the
resemblance and similitude of a foreign silver (or gold) coin, to wit,
a silver (or gold) coin of the Dominion of Canada called a ten cent
piece, which was then in actual use and circulation as money within
the United States (or which said coin is by law current in the United
States), 2 against the peace (concluding as in Form No. 6591).
Form No. 6599.
(Ala. Crim. Code (1886), p. 269, No. 30.)'
The State of Alabama. } ~. .. - ,
Dale county. \ Ctrcult court > P^ruary term, i&97.
The grand jury of said county charge that, before the finding of
this indictment,* John Doe counterfeited a silver coin of the republic
of Mexico, called a dollar, which was at the time, by law, usage and
custom, current in this state, against the peace and dignity of the
state of Alabama.
Daniel Webster,
Solicitor of the third circuit.
1. United States. Rev. Stat. (1878),
5457-
2. Foreign Coin Not Current in the
United States. An indictment alleging
that "Joseph Gardner, late of the town-
ship of Bloomfield, in the county of
Essex, and in the district of New Jersey,
on the ijth day of June, in the year of
our Lord iSjj. with force and arms,
etc., at the township of Bloomfield, in
the county of Essex, in the district of
New Jersey aforesaid, and within the
jurisdiction of this court, did falsely
and feloniously make, forge and coun-
terfeit one hundred pieces of false and
counterfeit coin, each piece thereof in
the resemblance and similitude of a
foreign coin, to wit, a silver coin of
Spain called a head pistareen, which by
law was then, and still is, made cur-
rent in the United States of America;
against the form of the statute of the
United States of America in such case
made and provided," and in a second
count charged that the accused "did
feloniously and willingly aid and assist
in falsely and feloniously making, forg-
ing and counterfeiting one hundred
pieces of false and counterfeit coin,"
describing them as in the first count,
was held bad for the reason that the
coin described in the indictment was
not a part of the Spanish milled dollars
and not a silver coin of Spain, made
current by law in the United States,
as was then necessary under the 2Oth
section of the act of 1825. U. S. v.
Gardner, 10 Pet. (U. S.) 618.
3. Alabama. Crim. Code (1886),
3856.
Substantially the same form is given
in Hill's Anno. Laws Oregon (1892), p.
1004, No. 17; Minn. Stat. (1894), 7239,
No. 22. In Minnesota, however, the
crime is called forgery in the second
degree. See Minn. Stat. (1894), 6692.
For statutes of similar tenor see as
follows:
New Jersey. Gen. Stat. (1895), p.
1081, 181.
North Carolina. Code (1883), 1035.
Virginia. Code (1887), 3735.
Under the New Jersey statute, how-
ever, it is not necessary that the coin
should at the time be current in the
state.
Aiding and Assisting. Where the in-
dictment charged that the defendant
"did feloniously aid and assist Baza-
leel Phelps, in making and counterfeit-
ing fifteen French guineas, one hundred
Spanish milled dollars, and one hundred
pistareens, of false and base metal, in
likeness and imitation of the true
830
Volume 5.
6600. CO UNTERFEJ TING. 6601.
N
(2) WITH INTENT TO EXPORT SAME.
Form No. 6600.'
State of Maine.
Kennebcc, ss. At the Superior Court, begun and holden at Augusta,
within and for said county of Kennebec, on the first Tuesday of Septem-
ber, in the year of our Lord one thousand eight hundred and ninety-
seven, the grand jurors for said state upon their oath present that John
Doe of Augusta, in the county of Kennebec, laborer, at Augusta, in said
county of Kennebec, on the first day of August, in the year of our Lord
one thousand eight hundred and ninety-swen, with force and arms, did
then and there wilfully, unlawfully and feloniously forge and coun-
terfeit fifty gold (or silver) coins, each in the resemblance and simili-
tude of a true and genuine gold (or silver} coin of Great Britain,
called a sovereign (or shilling), with intent then and there to export
the said false, forged and counterfeit coins to Great Britain, and with
the intent and for the purpose of defrauding the said foreign govern-
ment and its subjects, against the peace of said state, and contrary
to the form of the statute in such case made and provided.
Richard Roe, Forema
Daniel Webster, County Attorney.
The State of Nebraska, \
Lancaster County.
d. Gilding Coin. 1
Form No. 6601.*
SS.
Of the October term of the District Court of the second judicial dis-
trict of the state of Nebraska within and for Lancaster county, in said
coins," etc., it was held that the allega- Ohio. Bates' Anno. Stat. (1897),
tion that defendant aided and assisted 7100.
was substantially the same as that he Pennsylvania. Pepp. & L. Dig.
did counterfeit. Stater/. Stutson, Kirby (1894), p. 1139, 100.
(Conn.) 52. English Precedent. In Reg. t/. Tur-
1. Maine. Rev. Stat. (1883), c. 121, ner, 2 Moody C. C. 43, will be found
$ 5. the following indictment, to wit:
See also the following statutes of " The jurors of our lady the Queen
similar tenor, to wit: upon their oath present, that Alexander
Iowa. Code (1897), 4868. Turner, late of the parish of St. Mary
Mississippi. Anno. Code (1892), Matfelow, otherwise W. hitechapel, in the
1099. county of Middlesex, and within the
North Dakota. Rev. Codes (1895), jurisdiction of the said Court, laborer,
7429. on the 2jth day of January, in the ist
Oklahoma. Stat. (1893), 2355. year of the reign of our sovereign Lady
2. Mutilating Coin. For a statute Victoria, by the grace of God, of the
punishing the defacing, mutilating, im- United Kingdom of Great Britain and
pairing, diminishing, falsifying, scaling Ireland, Queen, Defender of the Faith,
or lightening of coin see U. S. Rev. with force and arms, at the parish
Stat. (1878), 5459. aforesaid, and within the jurisdiction of
8. Nebraska. Comp. Stat. (1897), the said Court, three pieces of the
6816. Queen's current silver coin called six-
Similar statutes exist in the follow- fences, then and there feloniously did
ing states, to wit: gild with materials capable of produc-
831 Volume 5.
6602. COUNTERFEITING. 6603.
state, in the year of our Lord one thousand eight hundred and ninety-
seven, the grand jurors, chosen, selected and sworn, in and for the
county of Lancaster, in the name and by the authority of the state of
Nebraska, upon their oaths present that John Doe, late of the county
aforesaid, on the first day of August, in the year of our Lord one
thousand eight hundred and ninety-seven, in the county of Lancaster,
and state of Nebraska aforesaid, then and there being, did unlawfully,
wilfully and feloniously* gild a large number, to wit, fifty silver coins,
then currently passing in the said state of Nebraska, called quarter
dollars, thereby giving to each of said silver coins the appearance of a
certain gold coin of the United States, to wit, of a half eagle (or other
gold coin, naming it, then passing in the state of Nebraska}, with intent to
injure and defraud, contrary to the form of the statute in such cases
made and provided, and against the peace and dignity of the state of
Nebraska.
Daniel Webster, County Attorney.
e. Tokens in Resemblance of Coin.
Form No. 6602.'
(Commencing as in Form No. 6591, and continuing down to *) unlaw-
fully and feloniously did make (or cause to be made) ten certain coins
of gold (or silver), of original design and intended for the use and
purpose of current money, the said coins then and there being coins
not authorized by law, and he, the said John Doe, not being then and
there authorized by law to make the same, against the peace (con-
cluding as in Form No. 6591).
2. Paper Money.
Form No. 6603.*
(Commencing as in Form No. 6591, and continuing down to *) unlaw-
ing the color of gold, with intent to Notes of Foreign Bank. For statute
make the same resemble and pass prohibiting the counterfeiting of the
for the Queen's current gold coin called notes of any bank or other corporation
half -sovereigns, against the form, etc., of a foreign country see 23 U. S. Stat.
and against the peace of our said lady at Large, p. 22, c. 52, 3.
the Queen, her crown and dignity." An indictment alleging that defend-
1. United States. Rev. Stat. (1878), ant, on a day named, "caused to be
5461. printed three certain impressions, each
For a statute prohibiting the making in the likeness of a certain part, to wit,
of any coin, card, token or device in the face, except the signatures and num-
metal, or its compounds, intended to bers, of a genuine treasury note of the
be used as money in place of any of denomination of 200 milreis of the
the minor coins see U. S. Rev. Stat. empire of Brazil, with intent to defraud
(1878), 5462. said empire, and other parties to the
2. United States. Rev. Stat. (1878), grand jurors unknown," charges an
5414, 5413. offense under this statute. U. S. v.
See also U. S. Rev. Stat. (1878), White, 25 Fed. Rep. 716. See also U.
5415, which prohibits the counterfeiting S. v. Arjona, 120 U. S. 482.
of notes issued by any banking asso-
ciation.
832 Volume 5.
6604.
CO UNTERFEITING.
6604.
fully and feloniously, with intent to defraud, 1 did falsely make,
forge and counterfeit a certain obligation and security of the United
States, to wit, a treasury note of the denomination of fifty dollars, the
tenor of which said false, forged and counterfeited treasury note is
as follows, to wit {Here set out a copy of the note), agatnst the peace
(concluding as in Form No. 6591).
Form No. 6604'
ss.
Commonwealth of Massachusetts \ \
County of Hampshire. \
At the Superior Court, begun and holden at Northampton, within
and for the county of Hampshire, on the second Monday of September,
in the year of our Lord one thousand eight hundred and ninety-seven.
The jurors for the commonwealth of Massachusetts, upon their oath,
present that John Doe, late of Williamsburg, in the county of Hamp-
shire aforesaid, on the first day of July, in the year of our Lord one
thousand eight hundred and ninety-seven, at Williamsburg in the
county aforesaid, did falsely make, forge and counterfeit a certain
bank bill purporting to be payable to the bearer thereof, and to be
signed in behalf of the president, directors and company of the
Hampshire County Bank, the same being an incorporated banking
company by law licensed and authorized as a bank within this com-
monwealth, which said forged and counterfeited bank bill is of the
1. It is sufficient to charge an intent
to defraud in the general language of
the statute, without setting forth the
name of any person intended to be
defrauded. U. S. v. Jolly, 37 Fed.
Rep. 108.
2. Massachusetts. Pub. Stat. (1882),
c. 204, 4
Similar statutes exist in other states
as follows:
Alabama. Crim. Code (1886), 3851.
Arizona. Pen. Code (1887), 740.
California. Pen. Code (1897), 470.
Colorado. Mills' Anno. Stat. (1891),
1258.
Delaware. Rev. Stat. (1893), c. 129,
P-949-
Florida. Rev. Stat. (1892), 2485.
Idaho. Rev. Stat. (1887), 7028.
Illinois. Starr & C. Anno. Stat.
(1896). p. 1286, par. 223.
Indiana. Horner's Stat. (1896),
2206.
Iowa. Code (1897), 4856.
Maine. Rev. Stat. (1883), c. 121, 2.
Maryland. Pub. Gen. Laws (1888),
P- 47L 37-
Michigan. How. Anno. Stat. (1882),
9215.
Minnesota. Stat. (1894), 6690.
Montana. Pen. Code (1895), 840.
Nebraska. Comp. Stat. (1897),
6810.
Nevada. Gen. Stat. (1885), 4637.
New Hampshire. Pub. Stat. (1891),
c. 274, 4.
New Mexico. Comp. Laws (1884),
| 785.
New York. Pen. Code, 509.
North Carolina. Code (1883), ^ 1030.
Ohio. Bates' Anno. Stat. (1897),
7091-
Oregon. Hill's Anno. Laws (1892),
1809.
Pennsylvania. Pepp. & L. Dig.
(1894), p. 1141, 107.
Texas. Pen. Code (1895), arts. 530,
53i-
Utah. Rev. Stat. (1898), 4343.
Vermont. Stat. (1894), 4980.
Wisconsin. Sanb. & B. Anno. Stat.
(1889), 4454.
Wyoming. Rev. Stat. (1887), 924.
See also the following statutes, to
wit:
Arkansas. Sand. & H. Dig. (1894),
Kentucky. Stat. (1894), 1189.
Mississippi. Anno. Code (1892),
1098.
Missouri. Rev. Stat. (1889), 3633.
Washington. Ballinger's Anno.
Codes & Stat. (1897), 7128.
West Virginia. Code (1891), c. 146,
3-
5 E. of F. P. 53.
833
Volume 5.
6605.
CO UNTERFEITING.
6605.
purport and effect following: {Here insert an exact copy of the bill, in
words and figures),'*- with intent the said president, directors and com-
pany of the said Hampshire County Bank to injure and defraud,
against the peace of said commonwealth, and contrary to the form of
the statute in such case made and provided.
Daniel Webster, District Attorney
II. UTTERING AND PASSING COUNTERFEIT MONEY.
l. Coin. 2
a. Generally.
1, Where an indictment for counter-
feiting a bank bill alleges that the bill
was " in the words and figures follow-
ing" or "of the tenor following," a
strict recital is necessary, but the num-
ber of the bill, and the figures on the
margin, or the words at the top, ex-
pressing its amount, are not parts of the
bill and need not be set out. Com. v.
Bailey, I Mass, 62; Com. v. Stevens, I
Mass. 203.
2. Requisites of Indictment Generally.
For the formal parts of an indictment
in a particular jurisdiction consult the
title INDICTMENTS.
For statutes relating to the offense of
uttering counterfeit coins see as fol-
lows:
Alabama. Crim. Code(l886), 3856.
Arizona. Pen. Code (1887), 747.
Arkansas. Sand. & H. Dig. (1894),
California. Pen. Code (1897), 477.
Colorado. Mills' Anno. Stat. (1891),
1259.
Connecticut. Gen. Stat. (1888), 1578.
Georgia. 3 Code (1895), 235.
Idaho. Rev. Stat. (1887), 7035.
Illinois. Starr & C. Anno. Stat.
(1896), p. 1287, par. 228.
Indiana. Horner's Stat. (1896),
2210.
Iowa. Code (1897), 4862.
Kansas. Gen. Stat. (1889), 2268.
Kentucky. Stat. (1894), 1181.
Maine. Rev. Stat. (1883), c. 121, 3.
Massachusetts. Pub. Stat. (1882), c.
204, 15.
Minnesota, Stat. (1894), 6702.
Mississippi. Anno. Code (1892),
1111.
Missouri. Rev. Stat. (1889), 3646.
Montana. Pen. Code (1895), 847.
Nebraska. Comp. Stat. (1897),
6815.
Nevada. Gen. Stat. (1885), 4638.
New Hampshire. Pub. Stat. (1891),
c. 274, 9. .
New Jersey. Gen. Stat. (1895), p.
1081, 180.
New Mexico. Comp. Laws ('1884),
795-
New York. Pen. Code, 521.
North Dakota. Rev. Codes (1895),
7438.
Ohio. Bates' Anno. Stat. (1897),
7099.
Oregon. Hill's Anno. Laws (1892),
1814.
Pennsylvania. Pepp. & L. Dig.
(1894), p. 1140, 103.
Rhode Island. Gen. Laws (1896), c.
280, 8.
Tennessee. Code (1896), 6616.
Texas. Pen. Code (1895), art. 561.
Utah. Rev. Stat. (1898), 4350.
Vermont. Stat. (1894), 4 4984.
Virginia. Code (1887), 3735.
West Virginia. Code (1891), c. 146,
3-
Wisconsin. Sanb. & B. Anno. Stat.
(1889), 4460.
Wyoming. Rev. Stat. (1887), 925.
United States. Rev. Stat. (1878),
5457-
Pass and Utter. Where an indict-
ment charged that the defendant did
"utter and pass" certain counterfeit
coins, and the words used in the stat-
ute were "put off," it was held that
the language of the indictment was
substantially the same as that of the
statute. Buckley v. State, 2 Greene
(Iowa) 162.
To Whom Uttered. The name of the
person to whom counterfeit coin was
passed should be set forth with cer-
tainty in the indictment, unless the
name is unknown, and if so that
fact should be stated. Gabe v. State,
6 Ark. 540; Rouse v. State, 4 Ga.
136; Gentry v. State, 6 Ga. 503; Buck-
834
Volume 5.
6605.
CO UNTERFEITING.
6605.
ley v. State. 2 Greene (Iowa) 162; U.
S. v. Bejandio, I Woods (U. S.) 294.
Description of Coin Generally. The
indictment must particularly set forth
the kind of coin alleged to be counter-
feited, that is to say, the denomination
or name, as dollar, half dollar or dime,
but the place of coinage and date are
immaterial. To aver counterfeit coin
to be in the likeness of silver coin cur-
rent in the commonwealth is insuffi-
cient. Com. v. Stearns, 10 Met. (Mass.)
258; Peek v. State, 2 Humph. (Tenn.)
78. See also Gabe v. State, 6 Ark. 540;
Gentry v. State, 6 Ga. 503; State v. Shoe-
maker, 7 Mo. 177; State v. Beeler, I
Brev. (S. Car.) 482; U. S. v. Bejandio,
I Woods (U. S.) 294.
Insufficient Description. In Com. v .
Fields, 5 Ky. L. Rep. 610, it was held
that the averment " a counterfeit coin
of the half-dollar denomination, resem-
bling the coin commonly called half
dollar of the United States of America,"
was not a sufficient description of the
coin.
Where an indictment for passing
counterfeit coin described the coin as
" a ten dollar gold coin," but failed to
state what government issued such
coin, or by what authority or when it
was issued, it was held that there was
nothing averred by which the coin
could be identified and that the descrip-
tion was insufficient. Waller v. Com.,
97 Ky. 509.
Time When Current Generally. The
time when the genuine coin was cur-
rent should be alleged when required
by statute. Nicholson v. State, 18
Ala. 531; Waller v. Com., 97 Ky. 509.
But may be omitted where the statute
does not require it, and if made may
be rejected as surplusage. Smith v,
State, 8 Ohio 295.
Sufficient Averment. An indictment
charging that the defendant uttered, in
payment, counterfeit coins, " made and
counterfeited to the likeness and simili-
tude of the good, true and current
money and silver coin, currently pass-
ing in this state, called ' Spanish dol-
lars,' " is good, but must be supported
by proof that such coins were current.
Fight v. Slate, 7 Ohio, pt. r, 181.
Insufficient Averment. Where an in-
dictment alleged that the defendant
"had in his custody and possession a
certain piece of false money and coin,
forged and counterfeit to the simili-
tude and likeness of a certain good gold
money and coin current in said common-
wealth by the usages thereof as money,
called a California Jive dollar gold piece;
and the aforesaid piece of forged
and counterfeit money and coin the
said Bond did then and there utter and
pass in payment as true to one Nancy
W. Fairbanks with intent her, the said
Nancy IV. Fairbanks, to cheat, injure
and defraud; he, the said Bond, then
and there well knowing the aforesaid
piece of money and coin to be false,
forged and counterfeit; against the
peace of said commonwealth, and con-
trary to the form of the statute in such
case made and provided," the defend-
ant's exceptions to a verdict of guilty
were sustained on the ground that gold
coins not issued by authority of con-
gress, nor of any foreign government,
although in circulation, are not " gold
coins current by law or usage," the
uttering of which is prohibited. Com.
v. Bond, I Gray (Mass.) 564.
Contradictory Allegations. An in-
dictment charging that the defendant
" one piece of false and counterfeit
money and silver coin, made and
counterfeited in imitation and similitude
of a piece of good, legal and current
money and silver coin of this state, called
a Mexican dollar, of the value of one
dollar, at that time current within this
state by law and usage, and in actual
use and circulation within this state,
then and there, feloniously did offer
and attempt to pass, utter and publish
as true, to one B. P. Franklin, with in-
tent then and there him, the said Frank-
lin, to defraud, he, the said defendant,
at the time when he so offered and at-
tempted to pass as true said false and
counterfeit money and silver coin,
then and there well knowing the
same to be false and counterfeit,
against the form," etc., was held de-
fective in that the averment that the
counterfeit coin was a "piece of good,
legal and current money and silver
coin of the state of Missouri " is con-
tradictory and repugnant to the subse-
quent averment that the coin is a
" Mexican dollar, current within this
state by law and usage." State v.
Shoemaker, 7 Mo. 177.
The intent to defraud should be alleged
when the statute requires it. And in
South Carolina it has been held that
an indictment for passing counterfeit
coin must charge it with an intent to
defraud some particular person. State
v. Odel, 3 Brev. (S. Car.) 552.
Scienter. The indictment should
contain an averment of scienter. Gabe
v. State, 6 Ark. 540; Gentry v. State, 6
835
Volume 5.
6605. COUNTERFEITING. 6606.
Form No. 6605.'
(Commencing as in Form No. 6591, and continuing down to *) know-
ingly, unlawfully and feloniously did pass, utter and publish a certain
false, forged and counterfeit gold (or silver) coin, in the resemblance
and similitude of a gold (or silver) coin called an eagle (or dollar),
coined and stamped at the mints of the United States, with intent to
defraud one Richard Roe, 2 he, the said John Doe, then and there
well knowing the said coin to be false, forged and counterfeit, against
the peace (concluding as in Form No. 6591).
Form No. 6606.
(Precedent in Gabe v. State, 6 Ark. 540.)*
[State of Arkansas ~\
against \ Pulaski Circuit Court.] 4
William Gabe, alias Santa Anna. J
The grand jurors for the State of Arkansas, duly returned [impan-
eled, sworn and charged as such in the name and by the authority
of the State of Arkansas, upon their oaths] 4 present that William
Gabe, alias Santa Anna, late of [said county of Pulaski,^ on the ninth
day of September, in the year of our Lord one thousand eight hundred
and forty-five, in the county of Pulaski aforesaid, one piece of base
and adulterated 5 coin, in imitation of and resembling a piece of the
gold coin which then and there was, and now is, current by law in
this State, called a gold eagle, and otherwise commonly known as a ten
dollar gold piece, feloniously and fraudulently did pass to one Eli
Clemens* he, the said William Gabe, alias Santa Anna, at the time he
so passed the said piece of base and adulterated coin, then and there
well knowing the same to be base and adulterated, false and counter-
feit, contrary to the form of the statute in such case made and pro-
vided, and against the peace and dignity of the State of Arkansas.
[Daniel Webster, Prosecuting Attorney.] 4
Ga. 503; State v. Shoemaker, 7 Mo. require both averments to be made is
177; State v. Beeler, I Brev. (S. Car.) requiring too much particularity. U.S.
482; Peek v. State, 2 Humph. (Tenn.) v. Bejandio, i Woods (U. S.) 294.
78. 3. For the present statute in Arkan-
1. United States. Rev. Stat. (1878), sas see supra, note 2, p. 834.
5457. See also supra, note 2, p. 4. The words enclosed by [] will not
834. be found in the reported case, but have
2. To Whom Uttered Intent to De- been added to render the form corn-
fraud. Where an indictment contained plete.
three counts, one of which charged the 5. It was held in this case that the
defendant with uttering and passing a words "base" and "adulterated," in
counterfeit coin with intent to defraud common parlance, signified the same
one Robert Harris, and the other two thing, and that there is no repugnancy
with uttering, etc., with intent to de- in charging in the indictment that the
fraud some person or persons to the defendant passed one piece of base
grand jury unknown, it was held that "and" adulterated coin,
the averment of intent to defraud some 6. It was held in this case that the
person or persons, which is required in allegation that the coin was passed to
an indictment under the United States a particular person is material, and the
statute, is a substitute for an averment Christian name of such person must be
specifying the name of the person to proved as charged,
whom the coin was passed, and that to
836 Volume 5.
6607. COUNTERFEITING. 6608.
Form No. 6607.
Precedent in McKinley v. State, 8 Humph. (Tenn.) 72.)'
Circuit Court ' D " mbtr Term '
The grand jurors for the State of Tennessee elected, impaneled,
sworn and charged to inquire for the body of the county of Jackson,
in the State of Tennessee, upon their oath present that 3 Eliza
McKinley, spinster, on the first day of October, eighteen hundred and
forty-six, with force and arms in the county of Jackson, in the State
of Tennessee, four pieces of false, base, forged, adulterated and
counterfeit coin, made and counterfeited to the likeness and in
imitation of the good, legal and current silver coin, then and there
current in the State of Tennessee, called dollars, as and for such pieces
of the good, legal and current coin of the State of Tennessee, called
dollars, then and there deceitfully and fraudulently did utter, tender
and pass to one William Goodall. She, the said Eliza McKinley, at
the time she so uttered, tendered and passed the said four pieces of
base, false, adulterated and counterfeit coin, well knowing the same
to be false, base, adulterated and counterfeit, against the form of
the statute in such case made and provided, and against the peace
and dignity of the State.
\West H. Humphreys, Attorney General.] 2
b. Foreign Coin.
Form No. 6608.
(Precedent in Gentry v. State, 6 Ga. 504.)*
Georgia, Cass County:
The Grand Jurors [chosen, selected and sworn for the county of
1. See also the second count in Peek base and adulterated, and counterfeit,
v. State, 2 Humph. (Tenn.) 79, which against the form of the statute in such
was held sufficient and was as follows: case made and provided, and against
"And the grand jurors aforesaid, the peace and dignity of the state."
upon their oaths aforesaid, do further See also list of statutes supra, note
present that the aforesaidy<iw Peek, 2, p. 834.
yeoman, afterwards, to wit, on the ist 2. The words and figures enclosed by
day of February, iBjS, with force and [ ] will not be found in the reported
arms, in the county of Overton, in the case, but have been added to render the
state of Tennessee, fifty pieces of false, form complete.
fraudulent, counterfeit, base and adul- 3. This indictment, though sufficient
terated coin to the likeness and simili- in form, was held insufficient for the
tude of the good, legal and current reason that the word "that" was in-
money and silver coin, current in the serted after the word " present" by way
state of Tennessee, called dollars, as and of amendment, and the record failed to
for pieces of such good legal and cur- disclose that the amendment was made
rent money and silver coin, called dol- by the grand jury.
lars, then and there did deceitfully 4. This form was drawn under a stat-
utter, tender and pass to one Edward ute identical with that now in force, to
N. Cullom; he, the said James Peek, wit, 3 Ga. Code (1895), 235. See also
yeoman, at the time he so uttered, ten- list of statutes cited supra, note 2, p.
dered and passed the said fifty pieces 834.
of false, fraudulent, base and counter- Precedent. In Kirk v. Com., 9 Leigh
feit money and coin, well knowing the (Va.) 627, the indictment, which was
same to be false, fraudulent, forged, sufficient, charged the offense as fol-
837 Volume 5.
6609. COUNTERFEITING. 6609.
Cass, to wit (naming them)},* in the name and behalf of the citizens
of Georgia, charge and accuse John Gentry with the offense of fraudu-
lently and falsely tendering in payment a base coin, knowing the
same to be base; for that the said John Gentry, on the 12th Febru-
ary, i8^5, in the county aforesaid, did tender to one Arthur Haire,
one piece of base coin, made and counterfeited to the likeness and
similitude of good legal and current silver coin, called a Spanish
dollar, knowing the same to be base, contrary to the laws of said
state, the good order, peace and dignity thereof; and the Jurors
aforesaid, in the name and behalf of the citizens of Georgia, farther
charge the said John Gentry with having committed the offense of
falsely and fraudulently uttering a counterfeit and forged coin,
knowing the same to be counterfeit and forged; for that the said
John Gentry, on the 12th day of February, i8^5, in the county and
state aforesaid, one piece of base and counterfeit money, made and
counterfeited to the likeness and similitude of legal and current silver
coin called a dollar* did falsely and fraudulently utter and tender 3
the said counterfeit dollar, knowing the same to be counterfeit, con-
trary to the laws of said state, the good order, peace and dignity
thereof.
[Superior Court. ) J. Milner, Solicitor General.
February Term, A. D. i8^P. \ Arthur Haire, Prosecutor.] 1
c. Gilded Coin.
Form No. 6609.*
(Commencing as in Form No. 6601, and continuing down to *) pass to
one Richard Roe, two silver coins, currently passing in this state,
lows, to wit: "That James Kirk, on dering in payment, it was not neces-
the toth of March, i8j<?, at the county sary to state the person to whom the
of Cabell, feloniously did pass to one counterfeit money was uttered.
Aly Williams a certain counterfeit, 4. Nebraska. Comp. Stat. (1897),
forged and base coin, of the likeness 6816.
and similitude of the Mexican coin and See also supra, note 2, p. 834.
money called a dollar, current within Precedent. In Wilson v. State, I
the common-wealth of Virginia as and for Wis. 184, the second count of the in-
a dollar, with intention to injure and dictment which was drawn under a
defraud the said Aly Williams, he the statute prohibiting the passing and
said James Kirk, at the time he so afore- uttering of counterfeit money, charged
said passed the said base coin, well the passing and uttering of gilded
knowing the same to be false, forged coins as follows:
and counterfeit, contrary to the form "That the said David Wilson, on the
of the statute." i^th day of September, 185^, at the
1. The words and figures enclosed by county of Grant aforesaid, one certain
[ ] will not be found in the reported piece of false and counterfeit money,
case, but have been added to render made of base metal and colored with a
the form complete. certain wash, producing the color of
2. Current Coin. It was held that it gold, to the likeness and similitude of
was sufficiently stated that the coin was a piece of good, lawful and current
passing or in circulation in the state gold money and coin of the United
without stating whether the coin was States, called a quarter-eagle, as and
foreign or domestic. for a piece of good, lawful and current
3. To Whom Uttered. It was held gold money and coin of the United
that, as the second count charged the States, called a quarter-eagle, unlaw-
offense of uttering and not that of ten- fully, unjustly and deceitfully did ut-
838 Volume 5.
6610. CO UNTERFEITING. 6611.
called quarter dollars, which said silver coins were then and there
gilded and had the appearance of gold coins of the United States,
currently passing in this state, to wit, quarter eagles, with intent to
injure and defraud the said Richard Roe, he the said John Doe then
and there knowing the said coins to be gilded as aforjesaid and not
genuine gold coins, contrary to the form of the statute {concluding as
in Form No. 6601).
d. Bringing Coin into the United States with Intent to Defraud.
Form No. 6610.'
(Commencing as in Form No. 6591, and continuing down to *) know-
ingly, unlawfully and feloniously did bring into the United States
from Toronto, in the province of Ontario, a large number, to wit,
one hundred false, forged and counterfeit coins, each in the resem-
blance and similitude of a silver (or gold} coin, coined and stamped
at the mints of the United States, called a dollar, with intent to
defraud some person or persons to the grand jury unknown, he the
s>a\& John Doe then and there well knowing the said coins to be false,
forged and counterfeit, against the peace (concluding as in Form No.
6591).
2. Paper Money. 2
a. Generally.
ter and pay to one Amos Chase, he, the Iowa. Code (1897), 4858.
said Wilson, well knowing," etc. This Kansas. Gen. Stat. (1889), 2268.
indictment was sufficient. For the pre- Kentucky. Stat. (1894), 1189.
ent Wisconsin statute, see supra, note Maine. Rev. Stat. (1883), c. 121, 3.
2, p. 834. Massachusetts. Pub. Stat. (1882), c.
1. United States. Rev. Stat. (1878), 204, 6.
5457. Michigan. How. Anno. Stat. ^1882),
2. Requisites of Indictment Gener- 9218.
ally. For the formal parts of an in- Minnesota. Stat. (1894), 6702.
dictment in a particular jurisdiction Mississippi. Anno. Code (1892),
consult the title INDICTMENTS. ion.
For statutes relating to the offense of Missouri. Rev. Stat. (1889), 3646.
uttering counterteit paper money see Montana. Pen. Code (1895), 840.
as follows: Nebraska. Comp. Stat. (1897), 6812.
Alabama. Crim. Code (1886), 3851. Nevada. Gen. Stat. (1885), 4637.
Arizona. Pen. Code (1887), 740. New Hampshire. Pub. Stat. (1891),
Arkansas. Sand. & H. Dig. (1894), c. 274, 5.
1596. New Jersey. Gen. Stat. (1895), p.
California. Pen. Code (1897), 470. 1082, 184.
Colorado. Mills' Anno. Stat. (1891), New Mexico. Comp. Laws (1884),
1258. 787.
Connecticut. Gen. Stat. (1888), 1578. New York. Pen. Code, 521 .
Delaware. Rev. Stat. (1893), c. 129, North Carolina. Code (1883), 8 1031.
p. 949. North Dakota. Rev. Codes (1895),
Florida. Rev. Stat. (1892), 2487. 7438.
Georgia. 3 Code (1895), 239. Ohio. Bates' Anno. Stat. (1897),
Idaho. Rev. Stat. (1887), 7028. 7091.
Illinois. Starr & C. Anno. Stat. Oregon. Hill's Anno. Laws (1892),
(1896), p. 1286, par. 223. 1810.
Indiana. Horner's Stat. (1896), Pennsylvania. Pepp. & L. Dig.(i894),
2208. p. II4I, 107.
839 Volume 5.
6611.
CO UNTERFEITING.
6611.
Rhode Island. Gen. Laws (1896), c.
280, 3.
Tennessee. Code (1896), 6601.
Texas. Pen. Code (1895),' art. 542.
Utah. Rev. Stat. (1898), 4348.
Vermont. Stat. (1894), 4978.
Virginia. Code (1887), 3735.
West Virginia. Code (1891), c. 146,
3.
Wisconsin. Sanb. & B. Anno. Stat.
(1889), 4455.
Wyoming. Rev. Stat. (1887), 924.
For other forms of indictments for
passing counterfeit notes see the fol-
lowing cases, to wit:
Arkansas. Mathcna v. State, 20
Ark. 70.
Illinois. Swain v. People, 5 111. 178.
Indiana. McGregor v. State, 16
Ind. 9.
Iowa. State v. Newland, 7 Iowa
242; State v. Barrett, 8 Iowa 537; Buck-
ley v. State, 2 Greene (Iowa) 162.
Kentucky. Mount v. Com., I Duv.
(Ky.) 90.
Massachusetts. Com. v. Boynton, 2
Mass. 77; Com. v. Taylor, 5 Cush.
(Mass.) 605; Com. v. Thomas, 10 Gray
(Mass.) 483; Com. v. Carey, 2 Pick.
(Mass.) 47.
Missouri. Hobbs v. State, 9 Mo.
856.
New Hampshire. State v. Carr, 5
N. H. 367.
Aew York. People v. Lewis, I
Wheel. Cr. Cas. (N. Y.) 181.
North Carolina. State v. Dourden,
2 Dev. L. (13 N. Car.) 443.
Pennsylvania. Com. v. Smith, 6
S. & R. (Pa.) 568.
Tennessee. Peek v. State, 2 Humph.
(Tenn.) 84; States. Shelton, 7 Humph.
(Tenn.) 31; Williams v. State, 9
Humph. (Tenn.) 80.
Vermont. State v. Wilkins, 17 Vt.
151-
Virginia. Com. v. Hensley, 2 Va.
Cas. 149; Buckland v. Com., 8 Leigh
(Va.) 732; Murryz/. Com., 5 Leigh (Va.)
720; Martin v. Com., 2 Leigh (Va.)745;
Brown v. Com., 2 Leigh (Va.) 769.
Use of Certain Words ' ' Did. ' '
Where an indictment charged that the
defendant "feloniously utter and pub-
lish," etc., omitting the word "did," it
was held insufficient, being too vague
and uncertain. State v. Haider, 2
McCord L. (S. Car.) 377.
"Dispose and Put Away'' Where
an indictment charged that the defend-
ant "did dispose of and put away,"
and the words of the act were " utter
and publish," it was held insufficient,
in that the allegation of the indictment
was more general than the words of
the act, and that the words of the stat-
ute should have been followed. State
v. Petty, Harp. L. (S. Car.) 59.
"Altered and Counterfeited." Under
the Ohio act of 1835 an indictment for
uttering a bank bill which charges the
bill to have been " false, forged, altered
and counterfeited," is repugnant. Kir-
by v. State, i Ohio St. 185.
Copy of Bank Note Generally. An
indictment for passing counterfeit bank
notes must set forth the forged instru-
ment in words and figures, if in ex-
istence and within the control of the
prosecutor, and in excepted cases the
facts upon which the exception rests
must be stated. Hooper v. State, 8
Humph. (Tenn.) 93; State v. Wheeler,
35 Vt. 261. See also Hampton v. State,
8 Ind. 336; Wilkinson v. State, 10 Ind.
372; Com. v. Wilson, 2 Gray (Mass.)
70; Com. v. Clancy, 7 Allen (Mass.)
537; Com. v. Taylor, 5 Cush. (Mass.)6c>5;
State v. Carr, 5 N. H. 367; State v.
Harris, 5 Ired. L. (27 N. Car.) 287;
Thompson v. State, 9 Ohio St. 354;
Com. v. Searle, 2 Binn. (Pa.) 332; State
v. Wilkins, 17 Vt. 151; Brown z/. Com.,
2 Leigh (Va.) 769; Murry v. Com , 5
Leigh (Va.) 720. But it is only neces-
sary to set out the material parts of the
note. State v. Carr, 5 N. H. 367.
Marginal Numbers. The marginal
numbers and figures are not essential
parts of the notes, and hence need not
be set forth. Com. v. Taylor, 5 Cush.
(Mass.) 605; Com. v. Bailey, I Mass.
62; Com. v. Stevens, I Mass. 203; State
v. Carr, 5 N. 'H. 367; People v. Frank-
lin, 3 Johns. Cas. (N. Y.) 299; State v.
Wheeler, 35 Vt. 261.
Ornamental Devices. It is not neces-
sary to set forth the ornamental parts
of the note, such as devices, mottoes,
etc. Hampton v. State, 8 Ind. 336;
Com. v. Searle, 2 Binn (Pa.) 332.
Name of Engraver. In setting forth
the copy of a bank note it is not im-
proper to set out the names and resi-
dences of the engravers as the same
appear upon the margin of the note.
Thompson v. State, 9 Ohio St. 354.
Indorsement. In setting out a coun-
terfeit bank note in hac verba, in an
indictment for passing the same, an in-
dorsement appearing to have been made
on the note after it was passed is prop-
erly omitted. Buckland v. Com., 8
Leigh (Va.) 732.
Names of Cashier and President.
Where a person was charged with ut-
840
Volume 5.
6611.
CO UN T ERF El TING.
6611.
tering and passing as true an uncur-
rent and worthless bank bill- of the
tenor following:
" State of Rhode Island.
The Tiverton Bank will pay to bearer
two dollars on demand. Tiverton,
Aug. i, 1857.
Cash'r. Pres't.
A more particular description of said
bank bill the said jurors have not, and
cannot give," the indictment was held
defective and insufficient in that it did
not contain the names of the cashier
and president in setting forth the tenor
of the bill. The averment that jurors
could not give a more particular de-
scription did not relieve it from the
defect, it not appearing that the bill
was ever signed. Com. v. Clancy, 7
Allen (Mass.) 537. But where an in-
dictment for passing a counterfeit
bank bill, in setting out the tenor of the
bill, described it as signed by J. M.
Thonpson and bill offered in evidence
was signed by J. M. Thompson, it was
held that the two names were idem
sonans, and that there was no fatal vari-
ance. State v, Wheeler 35 Vt. 261.
Name of State. It is a fatal variance,
in an indictment for uttering a counter-
feit bill, to omit the name of the state in
the upper margin thereof where the
name is not repeated in the body of the
bill, the name of the state being a part
of the contract. Com. v. Wilson, 2
Gray (Mass.) 70.
Describing Bill as Promissory Note.
An indictment for uttering a counterfeit
bank bill may describe it as a promis-
sory note. Com. v. Carey, 2 Pick.
(Mass.) 47; Com. v. Thomas, 10 Gray
(Mass.) 483; Com. v. Paulus, ir
Gray (Mass.) 305; Hobbs v. State, 9
Mo. 855; Com. v. Hensley, 2 Va. Cas.
149. Except where the statutes impose
different penalties for passing counter-
feit promissory notes and counterfeit
bank notes, in which case an indict-
ment alleging the passing of a counter-
feit promissory note and describing a
.counterfeit bank note is bad. State v.
Hayden, 15 N. H. 355; State v. Ward,
6 N. H. 529.
Averment of Existence and Incorpora-
tion of Bank Generally. The neces-
sity for and manner of alleging the
existence and incorporation of the bank,
counterfeit notes of which are alleged
to have been uttered, will depend
largely upon the language of the stat-
ute under which the indictment is
drawn. Thus where the statute makes
it an offense to utter counterfeit bank
notes of any bank incorporated by the
laws of the state, an indictment for
uttering a counterfeit bank note which
fails to allege that the bank was incor-
porated by the laws of the state is in-
sufficient, and the averment is not
supplied by an allegation that the bank
was a " banking company established
in said commonwealth." Com. v. Si-
monds, n Gray (Mass.) 306. See also
Kennedy v. Com., 2 Mete. (Ky.) 36;
Jennings v. People, 8 Mich. 81; Jones
v. State, 5 Sneed (Tenn.) 346. But it
has been held unnecessary to allege the
existence of the bank where the indict-
ment charges a design to defraud an
individual. Com. v. Carey, 2 Pick.
(Mass.) 47.
Under other statutes, however, it has
been held unnecessary to aver that the
bank had any legal existence. Hobbs
v. State, 9 Mo. 855; State v. Van Hart,
17 N. J. L. 327; Murry v. Com., 5 Leigh
(Va.) 720.
Sufficient Averments. Where an in-
dictment charged that the defendant,
"designing and intending to injure
and defraud one Millington Patillo,
with force and arms, in the county
aforesaid, did pass as good and genuine,
to the said Millington Patillo, a false,
forged and counterfeited promissory
note, commonly called a bank note, pur-
porting to be a good and genuine note
of one hundred dollars on the bank of
the State of South Carolina, which said
false, forged and counterfeited bank
note is as follows, that is to say (set-
ting forth a copy), with intent then and
there to defraud the said Millington
Patillo, he, the saidyaw^J Ward, at the
time he so passed the said counterfeited
bank note, well knowing," etc., it was
held that the averment of the existence
of the bank was sufficient, and con-
viction was sustained. State v. Ward, 2
Hawks (9 N. Car.) 443. Under a statute
prohibiting the counterfeiting of bank
bills "issued by any banking company
incorporated by the congress of the
United States, or by the legislature of
any state or territory of the United
States," an indictment which alleged
a counterfeit bank bill to be in imitation
of a bank bill " issued by the President,
Directors and Company of the Bank of
Cumberland, by and under the au-
thority of the legislature of the state of
Maine, one of the United States of
America," sufficiently averred the ex-
istence of the bank and that it was an
incorporated institution. State v. Wil-
kins, 17 Vt. 151. And where an in-
841
Volume 5.
6611.
CO UNTERFEITING.
6611.
dictment charged that the defendant
passed a counterfeit bank bill of the
denomination of three dollars, purport-
ing "to have been issued by the
Andover Bank, a banking company in-
corporated by the legislature of the com-
monwealth of Massachusetts, made pay-
able to E. F. or bearer on demand," it
was held that the portion in italics was
not an allegation of the purport of the
bill, but of the due incorporation of the
banking company, by whom the bill
purported to have been issued. State
v. Wheeler, 35 Vt. 261.
Unnecessary Particularity in Describing
Bank. In an indictment where it was
alleged that the defendant " did utter
and pass, and tender in payment as
true, to one Peter Kesler, two false,
forged and counterfeit bank bills, of
the denomination of two dollars, pur-
ported to be issued by the President,
Directors & Co. of the Massachusetts
Bank, payable toy. E. Haydcn; a cor-
poration duly organized for that pur-
pose, by the state of Massachusetts, with
intent to defraud, he, the said New-
land, well knowing," etc., it was held
that, although the bank had been de-
scribed with unnecessary particularity,
it was incumbent on the state to prove
the fact alleged. Upon this point the
judgment against the defendant was
reversed. State v. Newland, 7 Iowa
242. See also Com. z>. Smith, 6 S. &
R. (Pa.) 568; People v. Davis, 21 Wend.
(N. Y.) 309.
Authority of Bank to Issue Notes.
Under the Minnesota statute an indict-
ment for uttering counterfeit bank bills
must allege that the bills purported to
have been issued by a bank authorized
by law to issue such bills, and an in-
dictment charging that the defendant
did " utter and pass to and upon one
Peter Morrison, in payment of an in-
debtedness, two several counterfeit
bank notes or bills of the denomination
of three dollars each, purporting to
be issued by the New Haven County
Bank, of the state of Connecticut, know-
ing them to be false and counterfeit,
and with intent to injure and defraud
the said Morrison'' does not state facts
sufficient to constitute an offense in that
it failed to allege that the bank was
authorized by law to issue bank bills
and that defendant uttered and passed
the notes as true and genuine. Ben-
son r. State, 5 Minn. 19.
Intent to Defraud Generally.
The indictment must charge that the
counterfeit bill was passed with intent
to defraud. State v. Nicholson, 14 La.
Ann. 798; State v. Seran, 28 N. J. L.
519; Hooper v. State, 8 Humph. (Tenn.)
93. See also Wilkinson v. State, 10
Ind. 372; State v. Barrett, 8 Iowa 537;
Hobbs v. State, 9 Mo. 855; State v.
Dourden, 2 Dev. L. (13 N. Car.) 443;
State v. Ward, 6 N. H. 529; People
v. Wilson, 6 Johns. (N. Y.) 320; Stough-
ton v. State, 2 Ohio St. 563; Butler v.
Com., 12 S. & R.(Pa.) 237; Williams v.
State, 9 Humph. (Tenn.) 80; Fergus
v. State, 6 Yerg. (Tenn.) 345; Brown v.
Com., 2 Leigh (Va.) 769; Martin v.
Com., 2 Leigh (Va.) 745; Hendrick
v. Com., 5 Leigh (Va.) 707; Buckland
v. Com., 8 Leigh (Va.) 732; Jett v.
Com., 18 Gratt. (Va.) 933.
Person to be Defrauded. The name
of the person to whom counterfeit
money was passed should be set forth
with certainty in the indictment, unless
the name is unknown, and if so that
fact should be stated. Buckley v.
State, 2 Greene (Iowa) 162. See also
Williams v. State, 9 Humph. (Tenn.)
80. An intent to defraud a firm in-
cludes an intent to defraud each mem-
ber thereof, and an indictment for
uttering a forged bank bill with intent
to defraud one member thereof is suffi-
cient without setting forth the names
of all the persons meant to be injured.
Stoughton v. State, 2 Ohio St. 563.
Where an indictment alleged an in-
tent to defraud a bank, it was held
sufficient. Brown v. Com., 2 Leigh
(Va.) 769-
And a general allegation of intent is
sufficient without naming the person
to be defrauded. State v. Nicholson,
14 La. Ann. 798. See also Wilkinson
v. State, 10 Ind. 372; State v. Barrett, 8
Iowa 538; Hooper v. State, 8 Humph.
(Tenn.) 93; Fergus v. State, 6 Yerg.
(Tenn.) 345.
Scienter. Guilty knowledge should
be distinctly averred in the indictment.
State v. Seran, 28 N. J. L. 519; Hooper
v. State, 8 Humph. (Tenn.) 93; State v.
Morton, 8 Wis. 352; U. S. v. Rouden-
bush, i Baldw. (U. S.) 514; U. S. v.
Carll, 105 U. S. 6n. See also Wilkin-
son v. State, 10 Ind. 372; Hobbs v.
State, 9 Mo. 855; State v. Ward, 6 N.
H. 529; State v. Ward, 2 Hawks (9 N.
Car.) 443; State v. Dourden, 2 Dev. L.
(13 N. Car. 1443; Butler v. Com., 62 S.
& R. (Pa.) 237; State v. Wilkins, 17 Vt.
151; Buckland v. Com., 8 Leigh (Va.)
735; Brown v. Com., 2 Leigh (Va.) 769;
Martin v. Com., 2 Leigh (Va.) 745;
Murry v. Com., 5 Leigh (Va.) 720; Jett
842
Volume 5.
6611.
CO UNTERFEITING.
6612.
Form No. 6 6 1 1 .'
(Commencing as in Form No. 6591, and continuing down to *) un-
lawfully and feloniously did utter, publish and pass to one Richard
Roe 2 a certain false, forged and counterfeited obligation of the
United States, to wit, a certain false, forged and counterfeited United
States treasury note 3 of the denomination of fifty dollars, which said
false, forged and counterfeited treasury note is as follows, that is to
say (Here set out a verbatim copy of the note), with intent to defraud the
said Richard Roe, he, the said John Doe, then and there well knowing 4
the said false, forged and counterfeited treasury note to be false,
forged and counterfeited, against the peace (concluding as in Form
No. 6591).
Form No. 6612.
(Precedent in Wilkinson v. State, IO Ind. 372.)*
v. Com.. 18 Gratt. (Va.) 933; U. S. v.
Howell, ii Wall. (U. S.) 432.
And in an indictment omitting the
words " knowing the same to be forged
and counterfeited," the allegation that
the counterfeit bill was uttered with
intent to defraud does not cure the de-
fect and the indictment is insufficient.
State v . Nicholson, 14 La. Ann. 798.
1. The charging part of this form,
which is based on U. S. Rev. Stat.
(1878), 5431, 5413, is subsantially the
charging part of the indictment in U. S.
v. Owens, 37 Fed. Rep. 112. See also
U. S. v. Carll, 105 U. S. 612; U. S. v.
Howell, ii Wall. (U. S.) 432.
Precedent. Where an indictment
charged that the defendant "feloni-
ously did attempt to pass to one.. S.
as and for a true and good bill or note,
a certain false, forged and counterfeit
paper writing, the tenor of which, "etc.,
" is as follows: ' the president, directors
and company of the Bank of the United
States promise to pay twenty dollars on
demand, at their office of discount and
deposit at Fayetteville, to the order of
D. Anderson, cashier thereof, Phila-
delphia, the 4th of July, 1827, John W.
Sandford, cashier, John Huske, presi-
dent,' with intent to defraud the
president, directors and company of the
Bank of the United States," it was held
that an offense was stated under the act
of 1816, 3 U. S. Stat. at Large 275, al-
though the persons whose signatures
were forged were not cashier and presi-
dent of that bank, that it was im-
material whether the bill be signed in
the name of real or fictitious persons,
or whether it would if genuine be bind-
ing on the bank or not. U. S. v.
Turner, 7 Pet. (U. S.) 132.
2. To Whom Passed. The indictments
in U. S. v. Owens, 37 Fed. Rep. 112,
and U. S. v. Howell, n Wall. U. S. 433,
do not state the name of the person to
whom the note was passed, but such an
averment is made in the indictment in
U. S. v. Carll, 105 U. S. 612.
3. Misdescription of Note. Where the
note is set forth by its tenor, a mis-
description of it as a treasury note,
when in fact it is a United States note,
is immaterial. U. S. v. Marcus, 53
Fed. Rep. 784. But a mistake in the
bill number or in the denomination of
the bill is a fatal variance. U. S. v.
Mason, 12 Blatchf. (U. S.) 497.
Likeness and Similitude. It is not
necessary to allege that the notes were
in the likeness and similitude of genuine
notes. Nor need the indictment aver
that any genuine note of the United
States has been authorized by law, or
ever was in circulation as an obligation
of the United States, as the court will
take judicial notice of the acts of con-
gress authorizing such obligations and
the form and substance thereof. U. S.
v. Owens, 37 Fed. Rep. 112.
" Words and Figures Following." The
allegation that the note is "in the
words and figures following" does not
mean that all the words and figures
printed on the back of the bill, and
forming no part of the contract set
forth on its face, are stated. U. S. v.
Marcus, 53 Fed. Rep. 784.
4. Scienter. An indictment under
this section is fatally defective if it
fails to allege that the defendant knew
the bill to be false, forged and counter-
feited. U. S. v. Carll, 105 U. S. 611.
5. For present statute in Indiana
see supra, note 2, p. 839. See also
843
Volume 5.
6613. COUNTERFEITING. 6613.
[In the Porter Circuit Court of Indiana, of the October Term, i857.
State of Indiana ~\
against
Frank Wilkinson. ] x )
The grand jurors of the state of Indiana, good and lawful men of
Porter county, impaneled, charged and sworn in the said Circuit
Court at the term thereof aforesaid, to inquire within and for the
body of said county, upon their oaths present, that Frank Wilkinson,
late of said county, on the twentieth day of March, A. D. i8<57, at Por-
ter county, did unlawfully, falsely, fraudulently and feloniously, give,
barter, sell, utter, publish, and put away to Q\\Z Joseph Jones, a certain
false, forged and counterfeit bank note, which said note was made in
imitation of, and did then and there purport to be a bank note for
the sum of five dollars, issued by the Farmers Bank of Kentucky, made
payable to bearer on demand at their bank in Princeton, which said
[false, forged and counterfeit bank] 2 note is of the tenor following,
to wit {Here was set out a copy of the note), with intent to defraud the
said Joseph Jones, 3 the said Frank Wilkinson then and there well
knowing 4 the said note to be false, forged and counterfeit; against
the peace and dignity of the state of Indiana, and contrary to the
form of the statute in such cases made and provided.
Mark L. De Motte, Pros. Att'y.
b. Foreign Bank Note.
Form No. 6613.*
{Commencing as in Form No. 6591, and continuing down to *) unlaw-
fully and feloniously did utter, pass, put off and tender in payment
to one Richard Roe, with intent to defraud said Richard Roe, one
certain false, forged and counterfeited bank note, in the likeness
and similitude of a bank note issued by a bank of the United King-
dom of Great Britain and Ireland, to wit, the Bank of England, and
intended by the law and usage of the said foreign government to circu-
late as money, the tenor of which said false, forged and counterfeited
bank note is as follows, to wit {Here set out a copy of the note), he,
the said John Doe then and there well knowing the same to be false,
other sufficient indictments in State v. 3. At this point in the precedent will
Harris, 5 Ired. L. (27 N. Car.) 287; Jett be found the following allegation, "and
v. Com., 18 Gratt. (Va.) 933. with intent to have the same put in cir-
1. The words and figures enclosed culation," but the court held that this
by [ ] will not be found in the reported was harmless surplusage, being a part
case, but have been added to render of the language of another section of
the form complete. the statute.
2. This indictment was objected to 4. It was objected to this indictment
on the ground of uncertainty, the con- that it did not aver that Jones, to whom
tention being that the word "said" the bill was passed, did not know that
immediately preceding the words en- it was counterfeit, but the court held
closed by [ ] referred to the genuine that the objection was groundless, no
and not to the counterfeit note, but the such averment being necessary,
court held otherwise and sustained the 5. United States. 23 Stat. at Large,
indictment. The words enclosed by c. 52, 4.
[ ] have been supplied to meet the ob-
jection urged.
844 Volume 5.
66 1 4. CO UNTERFEITING. 6614.
forged and counterfeited^ against the peace (concluding as in Form
No. 6591).
III. SELLING AND BARTERING COUNTERFEIT HONEY.
1. Selling.
Form No. 6614.
(Precedent in Leonard v. State, 29 Ohio St. 409.)
[State of Ohio, \ In the Court of Common Pleas of Scioto County,
Scioto County, ss. \ Ohio, for the Term of February, A. D. i876.
The jurors of the grand jury of the state of Ohio, within and for
the body of the county of Scioto, impaneled, sworn, and charged to
inquire of the crimes and offenses committed within said county of
Scioto, in the name and by the authority of the state of Ohio, on their
oaths do find and present that Richard Leonard, late of said county,
on the first day of January, in the year of our Lord one thousand
eight hundred and seventy-six, with force and arms, at town-
ship, in said county of Scioto, and state of Ohio^ unlawfully, feloni-
ously, and with intent to defraud, 3 did sell and dispose of to one
George Miller a certain false, forged and counterfeit coin, made in
the likeness and similitude of a silver Mexican dollar, a coin currently
passing as money in the state of Ohio, he, the said Leonard, then and
there well knowing said false, forged and counterfeit coin to be
1. Requisites of Indictment Generally. Pennsylvania. Pepp. & L. Dig.(i8g4),
For the formal parts of an indict- p. 1140, 102.
ment in a particular jurisdiction con- Utah. Rev. Stat. (1898), 4350.
suit the title INDICTMENTS. Virginia. Code (1887), 3735.
For statutes relating to the offense of West Virginia. Code (1891), c. 146,
selling and bartering counterfeit coin or 3.
paper money see as follows: Unnecessary Averments. An indict-
Arizona. Pen. Code (1887), 747. ment for having counterfeit banknotes
Arkansas. Sand. & H. Dig. (1894), in possession, and for making sale of
1596. them, need not charge that the sale
California. Pen. Code (1897), 477. was for a consideration, or to the in-
Connecticut. Gen. Stat. (1888), jury of any one where the statute does
1578. not require it, or that the notes were
Idaho. Rev. Stat. (1887), 7035. indorsed. And if such acts are charged
Indiana. Horner's Stat. (1896), to be felonious it is not error, although
2209. the offense is a misdemeanor. Hess v.
Kansas. Gen. Stat. (1889), 2256, State, 5 Ohio 5.
2261 . Having in Possession with Intent to Sell.
Kentucky. Stat. (1894), 1189. For form of indictment for having
Maryland. Pub. Gen. Laws (1888), counterfeit bank notes in possession
art. 27, 38. with intent to sell and barter the
Missouri. Rev. Stat. (1889), 3634, same see Bevington v. State, 2 Ohio St.
3639. 161.
Montana. Pen. Code (1895), 847. 2. The words and figures enclosed
Nebraska. Comp. Stat. (1897), 5746. by [ ] will not be found in the reported
New Jersey. Gen. Stat. (1895), p. case, but have been added to render the
1081, 174. form complete.
North Dakota. Rev. Codes (1895), 3. Intent to Defraud. It is not neces-
7422. sary, in an indictment under the Ohio
Ohio. Bates' Anno. Stat. (1897), statute, to aver that the sale was made
7104. with an intent to defraud. Leonard v.
Oklahoma. Stat. (1893), 2343. State, 29 Ohio St. 408.
845 Volume 5.
6615. COUNTERFEITING. 6616.
false, forged and counterfeit, [contrary to the form of the statute in
such case made and provided, and against the peace and dignity
of the state of Ohio.
W. W, Farnham, Prosecuting Attorney.] 1
Form No. 6615.*
In the Posey Circuit Court of Indiana, of the February Term, A. D.
1 897.
State of Indiana \
against
John Doe. )
The grand jury of the county of Posey, upon their oath, do present
that John Doe, on the first day of January, A. D. i897, at the county
of Posey aforesaid, did unlawfully and feloniously sell and barter to
one Richard Roe, one forged and counterfeited bank note, in the like-
ness and similitude of a bank note issued by the First National
Bank of Louisville, Kentucky, which said forged and counterfeited bank
note is as follows, to wit (Here set out a copy of the note), with intent
to defraud the said Richard Roe, he, the said John Doe, then and there
well knowing the same to be forged and counterfeited, contrary to
the form of the statute in such case made and provided, and against
the peace and dignity of the state of Indiana.
Daniel Webster, Prosecuting Attorney.
2. Advertising Green Goods.
Form No. 6616.
(Precedent in People v. Albow, 71 Hun (N. Y.) 123.)
[Supreme Court, Dutchess County.
The People of the State of New York )
against
George Albow, ,]* )
The grand jury of Dutchess county, by this indictment, accuses
George Albow of aiding, abetting and assisting in a scheme of offer-
ing or purporting to offer for sale and exchange green goods, so
called, being [counterfeit] 3 paper money, or pretending so to be
1. The words enclosed by [ ] will not of appeals (140 N. Y. 130) for the reason
be found in the reported case, but have that the indictment did not charge the
been added to render the form com- offense described in the statute, there
plete. being no averment that the defendant's
2. This form is drawn under Horner's scheme was to sell or exchange, or offer
Slat. Ind. (1896), 2209, and contains to exchange, "counterfeit " money, or
substantially the same state of facts as what purported to be such. Such aver-
shown by the indictment in Johnson v. ments are supplied in the form as
State, 2 Ind. 652. See also supra, note given in the text.
I, p. 845. Similar statutes are to be found in
3. " Counterfeit." The defendant the following states:
named in the above indictment, drawn Minnesota. Stat. (1894), 6708.
under N. Y. Pen. Code, 527, having New Jersey. Gen. Stat. (1894), p.
been convicted, the conviction was 1082, 183.
affirmed in the supreme court (71 Hun Pennsylvania. Pepp. & L. Dig.
(N. Y.) 123), but reversed in the court (1894), p. 1145, 116.
846 Volume 5.
6617. COUNTERFEITING. 66 1 7.
[counterfeit] 1 paper money, by means of circular and letters and
telegrams addressed and "sent to one Ephraim Cassell at East Fork
Post Office, in State of North Carolina, in the months of December,
i892, and January, \W3, and by which the said Ephraim C&Rfg/Tand
Ira Hogshead were induced to come to the city of Poughkeepsie, in the
county of Dutchess and State of New York, to deal with him, said
George Albow, therefor, and for that the said George Albow, on the
12th day of February, \W2, at the city of Poughkeepsie in this county,
did state to one Ephraim Cassell, that he would take him, said Cassell,
and one Hogshead then and there being, to an old gentleman in the
city of New York, who had one hundred thousand dollars of goods like
a one dollar greenback so called, being a treasury note issued by the
government of the United States of America, and then and there said
Albow showed said Cassell said one dollar treasury note as aforesaid,
when he, said Ephraim Cassell, could with said old gentleman exchange
one hundred dollars of his, Casselfs, money for one thousand dollars of
said old gentleman's [counterfeit] 1 money, which said Albow then and
there said to said Cassell at said city of Poughkeepsie, on said 12th day
of February, i893, was as good as said one dollar bill which he, said
Albmv, showed to said Ephraim Cassell, and asked said Cassell to go
with him at once to said city of New York, and also one Ira Hogs-
head to get the said [counterfeit] 1 money of the old gentleman,
which said [counterfeit] 1 money said Albow called and designated as
"goods," and which offer and statements by said George Albow were
to carry out the scheme of selling or pretending to sell to said Cas-
sell and said Hogshead [counterfeit] 1 "paper money " or "goods," or
what was claimed to be such [with intent then and .jthere to defraud
said Cassell and said Hogshead]? contrary to section 527 of the Code
of the Penal Code, and contrary to the form of the statute in such
case made and provided and against the peace of the People of the
State of Neiu York and their dignity.
[Horace D. Hufcut, District Attorney of the County of Dutchess^
IV. HAVING COUNTERFEIT MONEY IN ONE'S POSSESSION.
1. Coin. 4
a. Generally.
1. See supra, note 3, p. 846. For the formal parts of an indict-
2. Intent to Defraud. In the dissent- merit in a particular jurisdiction con-
ing opinion in this case in the supreme suit the title INDICTMENTS.
court (71 Hun (N. Y.) 123), attention is For statutes relating to the offense of
called to the fact that the indictment having counterfeit coin in one's pos-
did not allege an intent to defraud, session see as follows:
No notice of this point is taken by the Alabama, Crim. Code (1886),
higher court (140 N. Y. 130), but the 3856.
statute contains this language, which Arizona. Pen. Code (1887), 749.
is accordingly inserted in the text. Arkansas. Sand. & H. Dig. (1894),
3. The words enclosed by [ ] will not 1597.
be found in the reported case, but have California. Pen. Code (1897), 479.
been added to render the form com- Colorado. Mills' Anno. Stat. (1891),
plete. 1260.
4. Requisites of Indictment Generally. Connecticut. Gen. Stat. (1888), 1578.
847 Volume 5.
6617.
CO UNTERFEI TING.
6617.
Florida. Rev. Stat. (1892), 2493,
2494.
Idaho. Rev. Stat. (1887), 7037.
Illinois. Starr & C. Anno. Stat.
(1896), p. 1287, par. 229.
Indiana. Homer's Stat. (1896),
2211.
Iowa. Code (1897), 4862.
Kentucky. Stat. (1894), 1190.
Kansas. Gen. Stat. (1889), 2260.
Maine. Rev. Stat. (1883), c. 121, 3.
Massachusetts. Pub. Stat. (1882), c.
204, 14.
Michigan. How. Anno. Stat. (1882),
9227, 9228.
Minnesota. Stat. (1894), 6787.
Mississippi. Anno. Code (1892),
mo.
Missouri. Rev. Stat. (1889), 3638.
Montana. Pen. Code (1895), 849.
Nebraska. Comp. Stat. (1897),
6819.
Nevada. Gen. Stat. (1885), 4639.
New Hampshire. Pub. Stat. (1891),
c. 274, 9.
New Jersey. Gen. Stat. (1895), p.
1081, 182. This section prohibits
keeping any counterfeit coin with in-
tent to export to defraud any foreign
government or its subjects.
New Mexico. Comp. Laws (1884),
795-
New York. Pen. Code, 526.
North Carolina. Code (1883), 1036.
This section prohibits having in pos-
session Spanish milled dollars.
North Dakota. Rev. Codes (1895),
7436.
Ohio. Bates' Anno. Stat. (1897),
7104.
Oklahoma. Stat. (1893), 2362.
Rhode Island. Gen. Laws (1896), c.
280, 9.
Tennessee. Code (1896), 6616.
Texas. Pen. Code (1895), art. 561.
i/ta/i. Rev. Stat. (1898), 4352.
Vermont. Stat. (1894), 4984.
Virginia. Code (1887), g 3738.
West Virginia. Code (1891), c. 146,
6.
Wisconsin. Sanb. & B. Anno. Stat.
(1889), $ 4459.
Wyoming. Rev. Stat. (1887), 928.
For other forma of indictment see
People v. Stanton, 39 Cal. 698; Com. v.
Griffin, 21 Pick. (Mass.) 523; State v.
Keneston, 59 N. H. 36.
Number of Coins. Under the statutes
of some of the states, the number
of coins the defendant had in his
possession is immaterial, the stat-
utes being silent on this point, but
in other states the defendant must
have not less than a specified number
in his possession to be guilty of an
offense under the statute, or if he had
a smaller number will be guilty in a
lower degree. See statutes cited supra.
Describing Coin by Denomination.
Where the charging part of an indict-
ment was that the defendant " had
in his custody and possession a certain
piece of false and counterfeit coin,
counterfeited in the likeness and simili-
tude of the good and legal silver coin,
current within said commonwealth by
the laws and usages thereof, called
a dollar, with intent then and there to
pass the same as true; he, the said
Stearns, then and there well knowing
the same to be false and counterfeit,"
it was objected to as being insufficient
and uncertain, the evidence having
proved the coin to be in the similitude
of a Mexican dollar. It was held that,
although the indictment must particu-
larly set forth the kind of coin alleged
to be counterfeit, it is sufficient to de-
scribe the coin by denomination or
name, the place of coinage, date, etc.,
being immaterial. Com. v. Stearns,
10 Met. (Mass.) 256.
Where it is alleged in the indictment
that the defendant had in his possession
certain pieces of false money or coin,
counterfeited in the similitude of sil-
ver coin current by law and usage in
the state of Iowa, it is not necessary to
charge that the coin was counterfeited
in the similitude of the current coin of
the United States. State v. Williams,
8 Iowa 533.
"At the Same Time." Where the
statute prohibits the possession of a cer-
tain number of counterfeit pieces " at
the same time," these exact words
must be used, and it is not sufficient to
charge that the accused had the num-
ber of pieces in his possession on a
certain day. Scott v. Com., 14 Gratt.
(Va.) 687.
Scienter. Where an indictment al-
leged that the defendants "wilfully,
feloniously and knowingly did have in
their possession five counterfeit silver
coins of the species of the silver coin
then and now current in said state
of California, of the denomination of
half dollars, with intent then and
there wilfully, feloniously and unlaw-
fully to utter and pass the same, with
intent then and there to defraud one
Ryan and other persons to the grand
jury unknown," it was held that the
defendant's knowledge of the spurious
character of the coin was substantially
848
Volume 5.
6617.
CO UNTERFEITING.
6617.
Form No. 6617.'
(Commencing as in Form 'No. 6591, and continuing down to *) unlaw-
fully, knowingly and feloniously did have in his possession ten certain
false, forged and counterfeit coins (or bars), each in the resemblance
and similitude of a gold (or silver) coin (or bar) coined -and stamped
at the mints (or assay-offices) of the United States, called a dollar (or
describing the bar, giving weight, fineness and device stamped thereon),
with intent to defraud 2 a certain person or persons to the grand
jurors aforesaid unknown, 3 he, the said John Doe, then and there
well knowing 4 the said false, forged and counterfeit coins (or bars')
to be false, forged and counterfeited, against the peace (concluding
as in Form No. 6591).
and sufficiently charged. People v.
vStanton, 39 Cal. 698.
Allegation of Intent. It is provided
by statute in Tennessee that in an in-
dictment for fraudulently keeping in
possession counterfeit money or bank
notes, it is not necessary to aver in the
indictment that the party charged in-
tended to pass or impose the counterfeit
money on the community as good
money. Tenn. Code (1896), 7098;
Sizemore v. State, 3 Head (Tenn.) 26.
1. United States. Rev. Stat. (1878),
5457-
Insufficient Indictment. In U. S. v.
Bicksler, I Mackey (D. C.) 341, will be
found the following indictment, to wit:
"The grand jurors of the United
States of America in and for the county
and district aforesaid, upon their oath
present: That one Thomas J. Bicksler,
late of the county and district afore-
said, on ih^ first day oi January, in the
year of our Lord one thousand eight
hundred and eighty, and at divers other
days between the said last named day
and the date of the taking of this in-
quisition at the county and district
aforesaid, ten certain false, forged and
counterfeit coins, each in the resem-
blance and similitude of the minor sil-
ver coinage which has been coined at
the mints of the United States, called a
half dollar, ten certain false, forged and
counterfeited coins, each in the resem-
blance and similitude of the minorsilver
coinage which has been coined at the
mints of the United States, called a
quarter dollar, ten certain false, forged
and counterfeited coins, each in the re-
semblance and similitude of the minor
silver coinage which has been coined
at the mints of the United States, called
a dime, and ten certain false, forged and
counterfeited coins, each in the resem-
blance and similitude of the minor silver
coinage which has been coined at the
mints of the United States, called a half
dime, with force and arms, unlawfully,
knowingly and feloniously did have in
his possession with intent to defraud a
certain person to the grand jurors
aforesaid unknown, against the form
of the statute in such case made and
provided and against the peace and
government of the United States of
America." The indictment was held
insufficient for the following reasons:
1. That as the offense of having in
possession counterfeit gold or silver
coin is not complete unless the accused
had them in his possession "knowing
the same to be false, forged or counter-
feit," the indictment must so allege.
2. That under section 3515 of the Re-
vised Statutes none of the particular
coins mentioned in the indictment are
embraced under the term " minor
coins," and as none of these minor
coins contain silver, there is no such
thing known to the law as " minor
silver coinage," and the indictment set
forth an offense not known to the law.
3. That the counterfeiting of half
dimes cannot be punished under the act
relating to minor coins, but must be
sought under the act punishing the
forging of silver coins
English Precedent. For an English
precedent of indictment for having
counterfeit coins in one's possession
see Reg. v. Martin, n Cox C. C. 343.
2. Intent to Defraud. An allegation
of intent to defraud is necessary. U. S.
v. Otey. 31 Fed. Rep. 72.
3. Person to be Defrauded. This is a
sufficient description of the person to
be defrauded. It is not necessary to
give the name of such person. U. S.
v. Bicksler, i Mackey (D. C.) 341.
4. Scienter. The allegation of sci-
enter is necessary. U. S. v. Bicksler,
I Mackey (D. C.) 341.
5 E. of F. P. 54.
849
Volume 5.
6618. COUNTERFEITING. 6620.
Form No. 6618.
(Ala. Crim. Code (1886), p 269. No. si.) 1
(Commencing as in Form No. 6599, and continuing down to *) John
Doe had in his possession a counterfeit of a gold coin of the United
States, of the denomination of ten dollars, which was at the time 2
current in this state, knowing the same to be counterfeit, and with
intent to defraud or injure, by uttering the same as true, or caus-
ing it to be so uttered, against the peace (concluding as in Form
No. 6599).
b. Foreign Coin.
Form No. 6619.
(Precedent in Com. v. Fuller, 8 Met. (Mass.) 313. ) 3
^Commonwealth of Massachusetts, ) At the Superior Court, begun
County of Middlesex, j ' and holden at Lmvell, within
and for the county of Middlesex, on the second Monday of September,
in the year of our Lord one thousand eight hundred and forty-four.
The jurors for the Commonwealth of Massachusetts, upon their oath
present that David R. Fuller, late of Lowell, in the county of Middle-
sex aforesaid, on the fifteenth day of April, in the year of our Lord
one thousand eight hundred and forty-four}* at Lowell, in the county
of Middlesex, had in his custody and possession, at the same time,
ten similar pieces of false and counterfeit coin, of the likeness and
similitude of the silver coin current within this Commonwealth, by the
laws and usages thereof, called Mexican dollars, with intent then and
there the said pieces of false and counterfeit coin to utter and pass
as true, he the said David R. Fuller then and there well knowing
the same to be false and counterfeit, against the peace of the Com-
monwealth, and contrary to the form of the statute in such case made
and provided.
\Daniel Huntington, District Attorney.] 4
Form No. 6620.
(Minn. Stat. (1894), 7239, No. 23.)
The district court for the county of Ramsay and state of Minnesota:
The State of Minnesota )
vs. >
John Doe. )
John Doe is accused by the grand jury of the county of Ramsay, by
1. Alabama. Crim. Code (1886), by the laws and usages thereof, called
3856. a half dollar ," was held bad. Nichol-
2. Time When Current. The time son v. State, 18 Ala. 529.
when a coin, of which a counterfeit is 3. This form is drawn under an early
in the possession of the accused, was Massachusetts statute, which is identical
current is a material ingredient of the with Mass. Pub. Stat. (1882), c. 204,
offense, and an indictment alleging 14. The indictment was held sufficient,
merely that defendant " had in his 4. The words enclosed by [ ] will not
custody and possession the piece of be found in the reported case, but have
false coin, forged," etc., "to the like- been added to render the form corn-
ness," etc., " of the good and legal coin, plete.
current within the limits of this state,
850 Volume 5.
6621.
CO UNTERFEITING.
6621.
this indictment, of the crime, of having in his possession counterfeit
money, committed as follows: The said John Doe, on they?/ day of
February A. D. iS98, at the city of St. Paul, in this county, had in his
possession a counterfeit of a gold (or silver) coin of the Republic of
Mexico, called a dollar, which was at that time current in" this state,
knowing the same to be counterfeited, with intent to defraud (or
injure) by uttering the same as true (or false).
Dated at St. Paul, in the county of Ramsay, the first day of April,
A. D. i B98.
A True Bill.
Andrew Jackson, foreman of the grand jury.
2. Paper Money. 1
a. Generally.
1. Requisites of Indictment Gener-
ally. For the formal parts of an in-
dictment in a particular jurisdiction
consult the title INDICTMENTS.
For statutes relating to the offense of
having in one's possession counterfeit
paper money see as follows:
Arizona. Pen. Code (1887), 745.
Arkansas. Sand. & H. Dig. (1894),
I597-
California. Pen. Code (1897), 475.
Colorado. Mills' Anno. Stat. (1891),
1261.
Connecticut. Gen. Stat. (1888),
1578.
Florida. Rev. Stat. (1892), 2486.
Georgia. 3 Code (1895), 240.
Idaho. Rev. Stat. (1887), 7033.
Illinois. Starr & C. Anno. Stat.
(1896), p. 1286, par. 223.
Indiana. Horner's Stat. (1896),
2211.
Iowa. Code (1897), 4857.
Kansas. Gen. Stat. (1889), 2257.
Kentucky. Stat. (1894). 1190.
Maine. Rev. Stat. (1883), c. 121,
3-
Massachusetts. Pub. Stat. (1882), c.
204, 5-
Michigan. How. Anno. Stat. (1882),
S 9217, 9220.
Mississippi. Anno. Code (1892),
1109.
Missouri. Rev. Stat. (1889), 3635.
Montana. Pen. Code (1895), 845.
Nebraska. Comp. Stat. (1897),
6812.
New Hampshire. Pub. Stat. (1891),
c. 224, 5.
New Jersey. Gen. Stat. (1895), p.
1081, 176.
New Mexico. Comp. Laws (1884),
786.
North Dakota. Rev. Codes (1895),
7423.
Oregon. Hill's Anno. Laws (1892),
1811.
Ohio. Bates' Anno. Stat. (1897),
7104.
Pennsylvania. Pepp. & L. Dig.
(1894), p. 1143, 1 10.
Rhode Island. Gen. Laws (1896), c.
280, 4.
Tennessee. Code (1896), 6602.
Texas. Pen. Code (1895), art. 544.
Utah. Rev. Stat. (1898), 4348.
Vermont. Stat. (1894), 4980.
Virg inia. Code (1887), 3738.
West Virginia. Code (1891), c. 146,
6.
Wisconsin. Sanb. & B. Anno. Stat.
(1889), 4455.
Wyoming. Rev. Stat. (1887), 927.
For other forms of indictments for
having counterfeit bank notes in pos-
session see Gabe v. State, 6 Ark. 519;
Clark v. Com., 16 B. Mon. (Ky.) 211;
State v. Bonney, 34 Me. 223; State v.
Symonds, 36 Me. 128; Brown v. Com.,
8 Mass. 59; State -v. Randall, 2 Aik. (Vt.)
89.
For Having in Possession Torn Bills.
For an indictment see Com. v. Hay-
ward, 10 Mass. 34.
Use of Certain Words "Feloniously."
In an indictment for having in posses-
sion counterfeit bank notes with intent
to utter or pass the same as genuine it
is not necessary to charge that the
offense was committed feloniously, in-
famously or criminally; if the offense
is charged in the words of the statute
it is sufficient. Quigley z/. People, 3
111. 301.
"At Same Time." Where a statute
makes it an offense to have in posses-
851
Volume 5.
6621.
CO UNTERFEITING.
6621.
sion "at any one time any number
not less than ten " similar counterfeit
bank bills, knowing them to be coun-
terfeit and with intent to utter the
same, an indictment founded thereon
which alleged that defendant "had in
his custody and possession ten similar
false, forged and counterfeit bank bills,"
on a certain day, was held insufficient
for the reason that a material part of
the offense consisted in possessing ten
similar counterfeit bills "at one and
the same time," and should have been
so alleged. Edwards v. Com., 19 Pick.
(Mass.) 124; State v. Bonney, 34 Me.
223.
" In the Similitude of."" Where an
indictment alleged the defendant had
"in his custody and possession, at the
same time, ten similar false, forged
and counterfeit bank bills," etc., it was
held that the allegation was insufficient
for the reason the word "similar "is
not equivalent to the language of
the statute, " in the similitude of," and
cannot be substituted for it. State v.
McKenzie, 42 Me. 392.
" Bank Bill and Note" An indict-
ment which describes the forged in-
strument as a "bank bill and note,"
when the words of the statute are a
"bank bill or note," is not defective.
Stone v. State, 20 N. J. L. 404.
"Commonly Called Bank Note"
Where an indictment uses the words
" commonly called a bank note" in the
description of the forged instrument,
in addition to the description of the
instrument given in the statute, they
will be rejected as surplusage or con-
sidered as words of additional descrip-
tion. Stone v. State, 20 N. J. L. 404.
Copy of Note Generally. The in-
dictment must set forth a copy of the
counterfeit note or allege a sufficient
reason for not doing so. Hooper v.
State, 8 Humph. (Tenn.) 93; State v.
Calendine, 8 Iowa 288; State v, Bon-
ney, 34 Me. 383; McMillen v. State, 5
Ohio 269; Com. v. Houghton, 8 Mass.
107. See also Com. v. Carey, 2 Pick.
(Mass.) 47; Bevington v. State, 2 Ohio
St. 161; Fergus v. State, 6 Yerg. (Tenn.)
345; State v. Wheeler, 35 Vt. 261.
Immaterial Variances. In setting
out a bill immaterial variances will not,
however, be fatal. Thus, where a bill
or note introduced in evidence was let-
tered " C " and the copy set out omitted
this letter. Quigley v. People, 3 111. 301.
And so where the copy of the bill pur-
ported to be signed by "P. E. Spinner"
and the name actually signed was " F.
E. Spinner." Com. v. Hall, 97 Mass.
571.
Excuse for Not Setting Out. Where
an indictment charged that the defend-
ant " feloniously did have in his posses-
sion forty forged, false and counterfeit
Jive dollar bank notes issued by the
Market Bank" and that the counterfeit
notes were in possession of the defend-
ant, and therefore a more particular
description was to the jurors unknown,
etc., it was held that the reason for not
setting out the notes was sufficient and
the indictment good. Armitage v.
State, 13 Ind. 441.
Allegation as to Currency. Where the
statute uses the words "current in
the state," or words to similar effect, the
indictment should contain an allegation
that the note, of which a counterfeit
was in the possession of the accused,
was at the time current in the state.
State v. Shelton, 7 Humph. (Tenn.) 31.
Corporate Existence of Bank. It is
not necessary to aver the corporate ex-
istence of the bank. Quigley v. Peo-
ple, 3 111. 301; Owen v. State, 5 Sneed
(Tenn.) 495; Fergus v. State, 6 Yerg.
(Tenn.) 345.
In State v. Weller, 20 N. J. L. 521, it
was held sufficient to charge in an in-
dictment that the defendant had in his
possession a counterfeit note, with in-
tent to pass the same with intention to
defraud a certain named bank, with-
out averring that the bank was incor-
porated. In the opinion this case is
distinguished from Stone v. State, 20
N. J. L. 401, in which it was held that
in an indictment, under a separate sec-
tion of the act, for having in possession
an unfinished counterfeit note in the
form of a note " made to be issued by
an incorporated bank," an allegation
of the incorporation of the bank is
material.
Where an indictment for having in
possession counterfeit bank bills al-
leges that the bank whose bills are
counterfeited is an incorporated com-
pany in a particular place and state, it
is equivalent to stating that the bank
was established in such state. People
v, Stewart, 4 Mich. 655, 5 Mich. 243.
Intent to Defraud Generally. The
indictment should contain an allega-
tion of intent to defraud. State v.
Calendine, 8 Iowa 288; Stone v. State,
20 N. J. L. 404; Com. v. Davis, n Gray
(Mass.) 8; Hooper v. State, 8 Humph.
(Tenn.) 100; Fergus v. State, 6 Yerg.
(Tenn.) 345. See also Townsend v.
People, 4 111. 327; Clark v. Com., 16 B.
852
Volume 5.
6621.
CO UNTERFEI TING.
6621.
Form No. 6621.
(Precedent in U. S. v. Williams, 4 Biss. (U. S.) 302.)'
^Commencing as in Form No. 65.91, and continuing down to *)] 2 un-
lawfully, feloniously and knowingly did then and there have and
keep in his possession, and conceal, with intent then and there to
Mon. (Ky.) 206; Com. v. Carey, 2 Pick.
(Mass.) 47; State v. Morton, 8 Wis. 352.
But it is not necessary to allege an in-
tent to defraud a particular person.
State v. Calendine, 8 Iowa 288;
Hooper v. State, 8 Humph. (Tenn.) 93;
State v. Morton, 8 Wis. 352. See also
Gabe v. State, 6 Ark. 524; Quigley v.
People, 3 111. 301; Stone v. State, 20 N.
J. L. 404; Fergus v. State, 6 Yerg.
(Tenn.) 352.
The People. In an indictment for
having a counterfeit bank promissory
note in possession it is insufficient to
charge an intent " to defraud the peo-
ple of the state of New Jersey," but it
is sufficient to allege an intent to de-
fraud the Commercial Bank of Balti-
more, without averring that the bank
was incorporated. State v. Weller, 20
N. J. L. 521; Stone v. State, 20 N. J. L.
404.
Illegal Banking Corporation. Where
an indictment for having counterfeit
bank notes in possession alleged an in-
tent to defraud a particular bank which
had been incorporated under an act of
the legislature which did not receive
a sufficient number of votes to make it
a law, it was held that there could not
be a conviction on the indictment. De
Bow v. People, I Den. (N. Y.) 9.
IVilfulor Felonious Intent. It is not
necessary to charge a wilful or felonious
intent to defraud. State v. Calendine,
8 Iowa 288.
Intent to Paw Generally. An alle-
gation of intent to pass is generally
necessary. Gabe v. State, 6 Ark. 519;
Townsend v. People, 4 111. 326; Clark
v. Com., 16 B. Mon. (Ky.) 206; Hop-
kins v. Com., 3 Met. (Mass.) 460; Com.
v. Davis, ii Gray (Mass.) 4; Com. v.
Price, 10 Gray (Mass.) 472; Com. v.
Cone, 2 Mass. 132. But this allegation
is no longer required in Tennessee.
Sizemore v. State, 3 Head (Tenn.) 27.
As True and Genuine. Whether it
will be necessary to allege an intent to
pass the counterfeit bill as true and
genuine depends upon the language of
the statute under which the indictment
is drawn. Thus it has been held under
the Massachusetts statute that an indict-
ment alleging that defendant had a
counterfeit bill in his possession " with
intent to pass the same" is sufficient
without alleging an intent to pass " as
true." Hopkins v. Com., 3 Met. (Mass.)
460. See also Com. v. Price, 10 Gray
(Mass.) 472, 71 Am. Dec. 669; Com. v.
Cone, 2 Mass. 132.
But under the Michigan statute the
contrary view is held. People v. Stew-
art, 4 Mich. 655, 5 Mich. 243.
Place of Passing. In an indictment
for having counterfeit bills in pos-
session with intent to put them in
circulation it is not necessary to state
that the intent was to pass them in
the county where the indictment was
found. Spence v. State, 8 Blackf. (Ind.)
282.
Upon an indictment charging that
the defendant had a counterfeit bill at
Boston, " with intent then and there to
utter and pass the same," it was held
that the words " then and there" were
needless, and should be construed as
if they had been inserted before the
words " with intent," so that they refer
to the intent to pass and not to the
time and place of the intended passing;
it is immaterial where the defendant
intended to pass the bill. Com. v.
Price, 10 Gray (Mass.) 472, 71 Am.
Dec. 669. See also Clark v. Com. , 16
B. Mon. (Ky.) 206; Com. v. Cone, 2
Mass. 132.
Scienter. The indictment should al-
lege that the defendant knew the bills
in his possession were counterfeit.
Owen -v. State, 5 Sneed (Tenn.) 495.
See also Townsend v. People, 4 111.
327; Buckley v. State, 2 Greene (Iowa)
162; Clark v. Com., 16 B. Mon. (Ky )
206; Brown v. Com. ,8 Mass. 67; Com.
v. Carey, 2 Pick. (Mass.) 47; Fergus v.
State, 6 Yerg. (Tenn.) 345; State v.
Morton, 8 Wis. 352.
1. This indictment was based on sec-
tions 10 and 13 of the act of congress
of June 30, 1864, which is now con-
tained in U. S. Rev. Stat. (1878), 5413,
5431-
2. The matter to be supplied within
[ ] will not be found in the reported
853
Volume 5.
6622.
CO UNTERFEITING.
6622.
pass, utter, and publish as true to some person or persons to the
grand jurors aforesaid unknown, one 1 - certain false, forged and coun-
terfeit national bank 2 note; which said false, forged and counter-
feit bank note is as follows, to wit {Here was set out a copy of the
note), 3 with intent then and there thereby to defraud some person or
persons to the grand jurors aforesaid unknown, he, the said Charles
Williams, then and there well knowing the said national bank note
to be false, forged and counterfeit, contrary to the form of the
statute [(concluding as in Form No. 6591').]*
Form No. 6622.
(Precedent in Tomlinson v. People, 5 Park. Cr. Rep. (N. Y. Supreme Ct.) 314. )
City and County of New York, ss:
The jurors of the People of the State of New York, in and for the
body of the city and county of New York, upon their oath, present:
That William Smith, late of the first ward of the city of New York,
in the county of New York, aforesaid, and John Tomlinson, late of the
1. The number of notes must be stated,
and an averment that the defendant
had in his possession "divers false,
forged and counterfeit " notes is insuf-
ficient. U. S. v. Fisler, 4 Biss. (U. S.)
59-
2. Name of Bank. The indictment
need not aver that the counterfeit note
purported to be a note of any desig-
nated national bank, if the instrument
be copied into the indictment and by
its terms purports to be such a note.
U. S. v. Williams, 4 Biss. (U. S.) 302.
Incorporation of Bank. It is not neces-
sary that the indictment should aver
that the bank was a legal corporation:
the national courts will take judicial
notice of the existence of all national
banks. U. S. v. Williams, 4 Biss.
(U. S.) 302.
3. Copy of Note. The indictment
must not only set out but must profess
to set out an exact copy of the counter-
feit note, or must state some valid
reason for not doing so, and an indict-
ment charging that the defendant "un-
lawfully and feloniously did have and
keep in his possession, and conceal,
with intent to pass, utter and publish
as true, divers false, forged and coun-
terfeit treasury notes, and each of them
are in substance described as follows,
that is to say," one of the supposed
forged notes being pasted on the in-
dictment at this point, is insufficient.
U. S. v. Fisler, 4 Biss. (U. S,) 59. In
this case the court expressed a doubt
whether it is sufficient to paste the
counterfeit note itself on the indictment
as a part of it.
Failure to set out a copy is sufficiently
excused by the following averment, to
wit:
"And the grand jurors aforesaid,
upon their oath aforesaid, do further
present and say that the said false,
forged and counterfeit notes and obli-
gations so kept and had in the posses-
sion of the said Martin D. Ho-well as
aforesaid are not, and each of them is
not, more particularly described herein,
and copies thereof, and the tenors
thereof, respectively, and of each there-
of, are and is not herein set forth, for
the reason that the grand jurors afore-
said have no knowledge or informa-
tion as to where, in whose possession,
or under whose control the said false,
forged and counterfeit notes and obli-
gations, and each thereof, now are
and is, and have and has been since the
same were and was so kept and had in
the possession of the said Martin D.
Howell, as aforesaid." U. S. v. Howell,
64 Fed. Rep. no.
Where an indictment charged that
the defendant had in his possession
counterfeit United States treasury
notes, it was held unnecessary to aver
that the counterfeits were made in the
resemblance of genuine notes, and that
the indictment need not in terms set
forth the name of the counterfeit notes,
as the court will determine what they
are by the copies set forth in the indict-
ment. U. S. v. Trout, 4 Biss. (U. S.)
105.
4. The matter to be supplied within
[ ] will not be found in the reported
854
Volume 5.
6623. COUNTERFEITING. 6623.
same place, on the thirteenth day of August, in the year of our Lord
one thousand eight hundred and sixty-one, with force and arms at the
ward, city and county aforesaid, feloniously had in their possession a
certain forged and counterfeited negotiable promissory note, for the
payment of money, to wit, the sum of five dollars, commonly called a
bank note, purporting to have been issued by a certain corporation
or company, called the Judson Bank, duly authorized for that purpose
by the laws of the State of New York, a further description of which
said last mentioned forged and counterfeited negotiable promissory
note, for the payment of money, is to the jurors aforesaid unknown, 1
with intention to utter and pass the same as true, and to permit, cause
and procure the same to be so uttered and passed, with the intent to
injure and defraud one Charles Meyer, and divers other persons to the
jurors aforesaid unknown, he, the said William Smith and John Tom-
linson, then and there well knowing the said last mentioned iorged
and counterfeited promissory note, for the payment of money, to be
forged and counterfeited as aforesaid, against the form of the statute
in such case made and provided, and against the peace of the People
of the State of New York and their dignity.
Nelson J. Waterbury, District Attorney.
b. Blank and Unfinished Bank Note.
Form No. 6623.
(Precedent in Com. v. Woods, 10 Gray (Mass.) 477.)*
\(Commencing as in Form No. 6619, and continuing down to*)] 3 had
in nis custody and possession a certain false, forged and counterfeit
promissory note 4 for the payment of money, of the tenor following,
that is to say: 5
1. Description of Note. This indict- Delaware. Rev. Stat. (1893), p. 949,
ment was objected .to on the ground c. 129, 2.
that it was insufficient in that it did not Idaho. Rev. Stat. (1887), 7033.
set forth a copy of the note or allege Montana. Pen. Code (1895), 845.
a reason for not so doing, but the court Nevada. Gen. Stat. (1885), $ 4642.
held that this was unnecessary. See New Jersey. Gen. Stat. (1895), p.
further, on this point, note 3, p. 854, 1081, 177.
supra. New York. Pen. Code, 511.
2. This indictment was properly North Dakota. Rev. Codes (1895),
framed, although the proof showed 7420.
the possession of a falsely and fraudu- Ohio. Bates' Anno. Stat. (1897),
lently altered genuine bank note. See 7104.
Mass. Pub. Stat. (1882), c. 204, 5. Tennessee. Code (1896), 6602.
For other statutes relating to the Utah. Rev. Stat. (1898), 4348.
possession of blank and unfinished Wyoming. Rev. Stat. (1887), 927.
forged or counterfeited bank notes see 3. The words to be supplied within [ 1
as follows: will not be found in the reported case.
Alabama. Crim. Code (1886), 3857. 4. The fact that the forged banknote
Arizona. Pen. Code (1887), 745. in this case was described as a promis-
California. Pen. Code (1897), sory note was held to be no variance.
475. 5. Under the New Jersey statute, an
Colorado. Mills' Anno. Stat. (1891), indictment for having in possession an
1261. unfinished counterfeit note must al-
Connecticut. Gen. Stat. (1888), lege that the bank was incorporated.
1578. Stone v. State, 20 N. J. L. 401.
855 Volume 5.
6624. COUNTERFEITING. 6625.
"State of Rhode Island. The Liberty Bank will pay
Providence Aug. 1854, to bearer ten dollars on demand.
C. R. Droun, Cashier. D. Evans, Prest/'
unless upon said promissory note there is a date of the day in the
month of August, eighteen hundred and fifty-four, which is to said
jurors unknown; the said Edward James then and there knowing the
same to be false, forged and counterfeit, with intent thereby then
and there to injure and defraud ^conclusion as in Form No. 6619~).] x
e. Foreign Bank Note.
Form No. 6624.*
(Commencing as in Form No. 6591, and continuing down to *) unlaw-
fully, feloniously and knowingly did have in his possession a certain
false, forged and counterfeit bank note in the likeness and similitude
of a bank note issued by a bank of the United Kingdom of Great Britain
and Ireland, duly authorized by the laws of said United Kingdom of
Great Britain and Ireland, to wit, the Bank of England, and intended
by the law and usage of said United Kingdom of Great Britain and
Ireland to circulate as money, the tenor of which said false, forged
and counterfeit bank note is as follows, that is to say {Here set out
a copy of the note}, with intent of him, the said John Doe, to utter,
pass and put off the same as true, he, the said John Doe, then and
there well knowing the same to be false, forged and counterfeited,
against the peace (concluding as in Form No. 669T).
V. MAKING INSTRUMENTS FOR COUNTERFEITING. 3
1. The words to be supplied within Kentucky. Stat. (1894), 1192.
[] will not be found in the reported Maine. Rev. Stat. (1883), c. 121,
case. 6.
2. United States. 23 Stat. at Large, Maryland. Pub. Gen. Laws (1888),
c - S 2 , 5- p. 47i, 37-
3. Requisites of Indictment Gen- Massachusetts. Pub. Stat. (1882), c.
erally. For the formal parts of an in- 204, 17.
dictment in a particular jurisdiction Michigan. How. Anno. Stat. (1882),
consult the title INDICTMENTS. 9230.
For statutes relating to the offense of Missouri. Rev. Stat. (1889), 8 3636.
making instruments used in forging or Montana. Pen. Code (1895), 850.
counterfeiting paper money or coin see Nebraska. Comp. Stat. (1897), 6813.
as follows: Nevada. Gen. Stat. (1885), | 4644.
Alabama. Crim. Code (1886), 3857. New Hampshire. Pub. Stat. (1891),
Arizona. Pen. Code (1887), 750. c. 274, 6, 10.
Arkansas. Sand. & H. Dig. (1894), New 'Mexico. Comp. Laws (1884),
1599- 788, 796.
California. Pen. Code (1897), 480. North. Dakota. Rev. Codes (1895),
Colorado. Mills' Anno. Stat. (1891), 7420.
i? 66 - Ohio. Bates' Anno. Stat. (1897),
Connecticut. Gen. Stat. (1888), 1578. 7099, 7103.
Delaware. Rev. Stat. (1893), p. 949, Oklahoma. Stat. (1893), 2346.
Oregon. Hill's Anno. Laws (1892),
Florida. Rev. Stat. (1892), 2496, 1812, 1815.
24 97- Pennsylvania. Pepp. & L. Dig.
Idaho. Rev. Stat. (1887), 7038. (1894), p. 1140, 104; p. 1142, g 108.
. Gen. Stat. (1889), 2258, Rhode Island. Gen. Laws (1896), c.
280, 5, 10.
856 Volume 5.
6625.
CO UNTERFEI TING.
6626.
Form No. 6625.'
(Commencing as in Form No. 6591, and continuing down to *) unlaw-
fully and feloniously, and without authority from the Secretary of
the Treasury of the United States or other proper officer, did make
(or willingly aid and assist in making or caused and procured to be made)
a certain die (or hub or mould) of steel (QV plaster or any other sub-
stance), in the likeness and similitude, as to the design and inscrip-
tion thereon, of a die (or hub or mould) designated for the coining
and making of one of the genuine gold coins of the United States,
coined at the mints of the United States, to wit, an eagle, against the
peace (concluding as in Form No. 6591).
VI. HAVING INSTRUMENTS IN ONE'S POSSESSIONS
1. For Counterfeiting Coin.
a. Generally.
Tennessee. Code (1896), 6605,
6617, 6618.
Texas. Pen. Code (1895;, arts. 543,
562.
Utah. Rev. Stat. (1898), 4353.
Vermont. Stat. (1894), 49&2, 4985.
Virginia. Code (1887), | 3736.
Washington. Pen. Code (1897), 64.
West Virginia. Code (1891), c. 146,
4-
Wisconsin. Sanb. & B. Anno. Stat.
(1889), 4456, 4461.
Wyoming. Rev. Stat. (1887), 932.
United States. 26 Stat. at Large, p.
742, c. 127, I, 2; Rev. Stat. (1878),
8 5430.
For form of indictment for engraving
a plate for counterfeiting a foreign
bank note see U. S. v. Arjona, 120 U.
S. 479.
Intent. There must be an allegation
of intent when required by the statute.
People v. D'Argencour, 32 Hun (N. Y.)
178.
1. United States. 26 Stat. at Large,
p. 742, c. 127, I.
2. Requisites of Indictment Gener-
ally. For the formal parts of an in-
dictment in a particular jurisdiction
consult the title INDICTMENTS.
For statutes relating to the offense of
having in one's possession instruments
used in forging or counterfeiting paper
money or coin see as follows:
Alabama. Crim. Code (1886),
3857.
Arizona. Pen. Code (1887), 750.
Arkansas. Sand. & H. Dig. (1894),
1599-
California. Pen. Code (1897), 480.
Colorado. Mills' Anno. Stat. (1891),
1266.
Connecticut. Gen. Stat. (1888),
1578.
Delaware. Rev. Stat. (1893), p. 949,
c. 129.
Georgia. 3 Code (1895), 241.
Idaho. Rev. Stat. (1887), 7038.
Illinois. Starr & C. Anno. Stat.
(1896), p. 1288, par. 230.
Indiana. Horner's Stat. (1896),
2212.
Iowa. Code (1897), 4867.
Kansas. Gen. Stat. (1889), 2258,
2280, 2281.
Kentucky. Stat. (1894), 1192.
Maine. Rev. Stat. (1883), c. 121, 6.
Massachusetts. Pub. Stat. (1882), c.
204, 9, 17.
Michigan. How. Anno. Stat. (1882),
9221, 9230.
Minnesota. Stat. (1894), 6692.
Mississippi. Anno. Code (1892),
1103.
Missouri. Rev. Stat. (1889), 3636.
Montana. Pen. Code (1895), 850.
Nebraska. Comp. Stat. (1897),
6813, 6815.
Nevada. Gen. Stat. (1885), 4644.
New Hampshire. Pub. Stat. (1891),
c. 274, 6, 10.
New Jersey. Gen. Stat. (1895), p.
1081, 178.
New Mexico. Comp. Laws (1884),
788, 796.
New York. Pen. Code, 511.
North Dakota. Rev. Codes (1895)
7420.
857
Volume 5.
6626.
CO UNTERFEITING.
6626.
Ohio. Bates' Anno. Stat. (1897),
7099, 7103.
Oklahoma. Stat. (1893), 2346.
Oregon. Hill's Anno. Laws (1892),
1812, 1815.
Pcnnsvlvania. Pepp. & L. Dig.
(1894), p. 1140, 104; p. 1142, 108.
Rhode Island. Gen. Laws (1896), c.
280, 5, 10.
Tennessee. Code (1896), 6606.
Texas. Pen. Code (1895), arts. 543,
562.
Utah. Rev. Stat. (1898), 4353.
Vermont. Stat. (1894), g 4982, 4985.
Virginia. Code (1887), 373-
Washington. Pen. Code (1891), $ 64.
West Virginia. Code (1891), c. 146,
4-
Wisconsin. Sanb. & B. Anno. Stat.
(1889), 4456, 4461.
Wyoming. Rev. Stat. (1887), 932.
United States. 26 Stat. at Large, p.
742, c. 127, i; Rev. Stat. (1878),
5430-
For other forms of indictments see
State v. Collins, 3 Hawks (10 N. Car.)
191; Sutton v. State, 9 Ohio 133; Long
v. State, 10 Tex. App. 194.
Defendant not Employed in Mint. The
indictment need not allege that the de-
fendant was not employed in the mint
of the United States. Harlan v. People,
I Dougl. (Mich.) 207.
Description of Instrument. The in-
dictment must describe by name or
otherwise the instrument which the de-
fendant had in his possession. Cham-
berlain v. State, 5 Blackf. (Ind.) 573;
Peoples v. State, 6 Blackf. (Ind.) 95.
Under the Tennessee statutes, it is not
necessary to give in the indictment a
particular description of the machine
or instrument the defendant had in his
possession, as by setting forth particu-
larly the description of the coin it was
designed to counterfeit, and an indict-
ment charging that the defendant did
feloniously and fraudulently, and with-
out any lawful excuse, keep in his
possession a machine, which said ma-
chine was then and there intended by
the said defendant for the purpose of
forging and counterfeiting the coin cur-
rent by law and usage in the state of
Tennessee and the United States, is
sufficient. Bradford v. State, 3 Humph.
(Tenn.) 370.
See insufficient description in Bell v.
State, 10 Ark. 536; Peoples v. State, 6
Blackf. (Ind.) 95.
Intent to Use. It is unnecessary to
allege an intent to use the instrument
for counterfeiting, as such does not
constitute an ingredient of the offense.
People v. White, 34 Cal. 183; Sasser v.
State, 13 Ohio 453.
Allegation of Currency of Coin. An
indictment alleging that the defendants
" feloniously and unlawfully, did have
in their possession a certain tool, or
other instrument, called a crucible,
made of hard substance and material
to the jurors aforesaid unknown; said
crucible then and there being con-
structed and contrived for the purpose
of melting, mixing, roasting, debasing,
altering and counterfeiting other base
metals, to wit, copper and zinc and tin,
to the imitation and likeness of good,
legal and pure silver; they, the said Za-
dock and Baxter, then and there having
the said crucible in their possession,
for the purpose of forging, alter-
ing and counterfeiting the current sil-
ver coin of this state and of the United
States, called half-dollars;aLnA then and
there intending to employ and use the
said crucible in and about the forming
and altering and counterfeiting the
said silver coin, called half-dollars;
which forged, altered and counterfeited
and base coin, so intended then and
there to be forged, altered and counter-
feited by them the said Baxter and
Zadock, would then and there be of the
similitude and likeness of the good cur-
rent and legal silver coin coined at the
United States mint, and the current coin
of this state and of the United States,
called half-dollars, contrary," etc., was
held insufficient, the words " were
current silver coins of this state and of
the United States" in the indictment
not being equivalent to the statutory
language, " which shall be made cur-
rent by the laws of this or the United
States." State v. Bowman, 6 Vt.
594-
Incorporation of Bank. In an indict-
ment for having in possession instru-
ments for counterfeiting bank notes it
is not necessary to allege the incorpora-
tion of the bank, the fact of its incor-
poration not being an element of the
crime. People v. McDonnell, 80 Cal.
285.
Scienter. Under the Ohio statute
(Bates' Anno. Stat. (1897), 7099), an
averment that the defendant secretly
kept instruments for counterfeiting
coin sufficiently shows a scienter. Sut-
ton v. State, 9 Ohio 133.
858
Volume 5.
6626. COUNTERFEITING. 6627.
Form No. 6626.
(Precedent in People v. White, 34 Cal. 183.)'
[In the County Court for the county Sonoma, state of California,
the sixth day of June, A. D. iS66.
The People of the State of California }
against > Indictment.
William White. }
William White is accused by the grand jury of the county of So-
noma, state of California, by this indictment, of the crime of know-
ingly having in his possession instruments used in counterfeiting
United States gold coin, committed as follows:] 2
The said William White, on the fourteenth day of February, A. D.
i&66, at the county of Sonoma, did knowingly procure and have in
his possession a certain mould, pattern, die, puncheon, tool, instru-
ment, and apparatus, made of wood and iron, made use of in
counterfeiting the gold and silver coin of the United States, now
made current in this state, to wit: a gold coin called a double eagle,
of the value of twenty dollars, and a silver coin called a half dollar,
contrary to the form of the statute [in such case made and pro-
vided, and against the peace and dignity of the people of the state
of California.
J. G. McCullough, District Attorney.] 2
b. Foreign Coin.
Form No. 6627.
(Precedent in Miller v. People, 3 111. 234.)*
*
State of Illinois, Cook County, ss.
The grand jurors chosen, selected, and sworn, in and for the
1. The defendant demurred to this offense to have been committed feloni-
indictment on the ground that the ously. 2. That the facts were not
facts stated in the indictment did not properly charged. 3. That, in the first
constitute a public offense, and on the count, the offense was not charged in
further ground that the indictment did the language of the code, nor in the
not state that defendant had the in- language of the common law. 4. That,
struments in his possession for the pur- in the second count, the offense in-
pose or with the intent to use the same tended to be charged is not sufficiently
in counterfeiting the coin of the United set out either under the statute or at
States, or defrauding any person or common law. 5. That the second count
body politic or corporate, but the de- failed to state in what county the
murrer was overruled and the judg- offense charged was committed, nor
ment affirmed on appeal. upon what authority the indictment
See Cal. Pen. Code (1897), 480, and was found. 6. That the indictment
list of statutes cited supra, note 2, was uncertain, imperfect and insuffi-
p. 857. cient in other respects. 7. That it
2. The words and figures enclosed did not state with sufficient precision
by [ ] will not be found in the reported or certainty any offense, either under
case, but have been added to render the statute or at common law. The
the form complete. judgment of the lower court, overrul-
3. This indictment was attacked for ing a motion in arrest of judgment
the following reasons: i. That it was founded upon the above objections,
insufficient in that it did not charge the was affirmed.
859 Volume 5.
6627. COUNTERFEITING. 6627.
county of Cook, in the name and by the authority of the people of
the state of Illinois, upon their oaths present, that John B. Miller,
late of said county, on the first day of December, in the year of our
Lord one thousand eight hundred and thirty-seven, in the county
aforesaid, one press for coinage, made of iron, otherwise called a
"bogus press"; one edging tool, made of iron and steel, adapted and
intended for the working of coin around the edges, with grainings,
apparently resembling those on the edges of coin then and now cur-
rent in the state aforesaid, to wit, Mexican dollars', one die, made of
steel, in and upon which then and there were made and impressed
the figure, resemblance and similitude of one of the sides, to wit, the
eagle side of the coin then and now current within the state afore-
said, to wit, a Mexican dollar; one other die, made of steel, in and
upon which then and there were made and impressed the figure,
resemblance and similitude, to wit, the reverse of the eagle side of
the coin and now current within the state of Illinois, called a Mexican
dollar-, two crucibles made of clay and sand, made use of in counter-
feiting the coin then and now current within the state aforesaid, to
wit, Mexican dollars, without lawful excuse; then and there know-
ingly, [unlawfully and feloniously] 1 had in his possession, contrary
to the form of the statute in such case made and provided, and
against the peace and dignity of the same people of the state of
Illinois.
And the same grand jurors, chosen, selected, and sworn, in and for
the county aforesaid, in the name and by the authority aforesaid,
upon their oaths aforesaid, do further present, that John B. Miller, late
of said county, on the first day of December, in the year of our Lord
one thousand eight hundred and thirty-seven, in the county aforesaid,
one press for coinage, made of iron ; one edging tool made of iron
and steel, adapted and intended for the working of coin round the
edges, with grainings, apparently resembling those on the edges of
coin then and now current within the state aforesaid, to wit, Mexican
dollars; one die, made of steel, in and upon which then and there were
made and impressed the figure, resemblance and similitude of one
of the sides, to wit, the eagle side of coin then and now current
within the state aforesaid, to wit, Mexican dollars; one other die,
made of steel, in and upon which then and there were made and im-
pressed the figure, resemblance and similitude of one of the sides,
to wit, the reverse of the eagle side of coin then and now current
within the state of Illinois, called Mexican dollars; two crucibles,
made of sand and clay, made use of in counterfeiting the coin then
and now current within the state aforesaid, called Mexican dollars,
then and there knowingly, unlawfully [and feloniously] 1 had in his
custody and possession, contrary to the form of the statute in such
case made and provided, and against the peace and dignity of the
same people of the state of Illinois.
A. Huntington, State's Attorney.
1. The words enclosed by [ ] are not ever, because necessary under the
I in the reported case and the in- present statute, which makes the offense
:tment was held sufficient without a felony. See Starr & C. Anno. Stat.
Ihem. They have been added, how- 111. (1896), p. 1288, par. 230.
860 Volume 5.
6628. COUNTERFEITING. 6629.
c. One Side Only.
Form No. 6628.
(Precedent in Com. v. Kent, 6 Met. (Mass.) 221. ) l
[(Commencing as in form No. 6619, and continuing down to *)] 2 did
knowingly have in his possession a certain mould, pattern, die, punch-
eon, tool and instrument, adapted and designed for coining and
making one side of a counterfeit coin in the similitude of one side or
half part of a certain silver coin, called a half dollar, to wit, that side
or half part thereof which represents a spread eagle, and has the
words " United States of America," "half dollar; " said coin, called
a half dollar, being current by law and usage in this State and Com-
monwealth aforesaid, with intent to use and employ the same mould,
pattern, die, puncheon, tool and instrument, and cause and permit
the same to be used and employed, in coining and making such false
and counterfeit coin as aforesaid, {(concluding as in Form No. 6619). ] 2
2. For Counterfeiting Gold Dust.
Form No. 6629.
(Precedent in People v. Page, I Idaho 102. ) 3
[The Territory of Idaho } In the District Court of the Judicial
against > District, in the County of Ada, February
JohnC. Page. ) Term, A. D. i8<57.
John C. Page is accused by the grand jury of the county of Ada of
the crime of having and secretly keeping in his possession instru-
ments for the counterfeiting of gold dust, 4 committed as follows:] 5
The said John C. Page on the fifteenth day of November, 1866, at the
county of Ada, did knowingly and wilfully have in his possession and
secretly did keep one furnace, three bottles acid, one mortar and
pestle, two sieves, one pair tongs, one gold pan, one large file, one
frying pan, one lot buckshot, one sack of spelter, one sack of sand,
two crucibles, six iron bars, the same then and there being instru-
ments for the purpose of counterfeiting uncoined gold, gold lumps
and pieces commonly called gold dust, then and there currently pass-
ing in the territory of Idaho, [with intent to use the said instruments
for the said purpose of counterfeiting uncoined gold, gold lumps and
pieces commonly called gold dust,] 6 contrary [to the form of the
statute in such case made and provided, and against the peace and
dignity of the territory oildaho.~\ &
1. This indictment was held to suffi- and secretly keeping instruments for
ciently charge an offense. the counterfeiting of gold dust," is a
2. The matter to be supplied within gross error. People v. Page, i Idaho
[ ] will not be found in the reported 102.
case. 5. The words and figures enclosed by
3. Idaho. Rev. Stat. (1887), 7038. [] will not be found in the reported
Similar statutes exist as follows: case, but have been added to render the
Arizona. Pen. Code (1887), 750. form complete.
California. Pen. Code (1897$, 480. 6. The precedent does not contain
Nevada. Gen. Stat. (1885), $4648. this allegation, and the indictment was
Montana. Pen. Code (1895), 847. held insufficient because it failed to
4. Charging that the defendant is allege that the instruments were had by
guilty of a "felony," instead of nam- the defendant for the purpose of coun-
ing the real offense, that of "having terfeiting. People v. Page, I Idaho 102.
861 Volume 5.
COUNTY COMMISSIONERS.
See the GENERAL INDEX to this work.
COUPONS.
See the titles BILLS AND NOTES, vol. 3, p. 260; BONDS AND
UNDERTAKINGS (ACTIONS ON\ vol. 3, p. 528.
COVENANT. 1
I. IN ENGLAND, 862.
i. At Common Law, 862.
9. Under Hilary Rules, 864.
II. IN THE UNITED STATES, 864.
CROSS-REFERENCES.
For Forms of Declarations in Actions for Breach of Particular Cove-
nants, see the title COVENANTS,
For Forms of Pleas in Actions of Covenant, see the various special titles
in this work.
See also the GENERAL INDEX to this work.
For matters of Procedure, see the title CO VENANTS, 5 ENCYCLO-
PAEDIA OF PLEADING AND PRACTICE, p. 342.
I. IN ENGLAND.
1. At Common Law. 2
Form No. 6630.
(2 Chit. PI. 241.)
Markham and Le Blanc.
Wednesday next after fifteen days of the Holy
Trinity, in Trinity Term, 51 Geo. III.
Middlesex, to wit. John Doe complains of Richard Roe being in
1. This title is intended to comprise 2. The form of common-law declara-
only forms pertaining strictly to the tion given in the text was that used in
common-law form of action, known as a declaration by bill in the king's
the action of covenant. For forms in bench. For the formal parts of decla-
actions for breaches of particular cove- rations in other courts, and by and
nants see the title COVENANTS, post, against particular persons, consult the
P- 868. title DECLARATIONS.
862 Volume 5.
6630.
COVENANT.
6630.
the custody of the marshal of the Marshalsea of our lord the now
king, before the king himself, of a plea of breach of covenant. For
that whereas, heretofore, to wit, on the twenty-fifth day of October,
A. D. iSltf, 1 at Westminster, in the county of Middlesex aforesaid, by
a certain indenture then and there made between the said John Doe
of the one part, and the said Richard Roe of the other part, 2 the
counterpart 3 of which said indenture, sealed with the seal 4 of the
said Richard Roe the said John Doe now brings here into court, the
date whereof is the day and year aforesaid, the said John Doe did
{Here set out the substance of the covenant in the words to be found in
the appropriate form under the particular title). 6 As by the said
indenture, reference being thereunto had, will (amongst other things)
more fully and at large appear. 6 And although the said John Doe
1. Date. A deed may be stated in
pleading to have been made on a day
different from its date, omitting the
words "bearing date," etc. Hall v.
Cazenove, 4 East 477. But it is most
usual to insert the date. 2 Chit. PI.
241, note d.
2. Addition of Parties. It is not neces-
sary or advisable to state the addition
of the parties. 2 Chit. PI. 241, note/.
3. Profert Generally. A profert, or
an excuse for the want of it, must in
general be stated or the declaration
will be bad on special demurrer. Stat.
4 Ann., c. 16; Read v. Brookman, 3 T.
R. 151. And where profert is stated,
and the deed cannot be produced, the
plaintiff will be nonsuited on the plea
of non estfactum. Smiths. Woodward,
4 East 585. As to proferts in general,
see i Chit. PI. 349^^.; i Saund. 9,
note i.
Both Parts Originals. If both parts
of the deed be originals, that is, signed
by all the contracting parties, profert
should be made in the following words,
to wit, " one part of which said inden-
ture," etc. 2 Chit. PI. 241, note g.
4. Seal. The declaration must state
that the contract was under seal. 2 Ld.
Raym. 1336, 1536.
5. Covenant, How Set Out. The words
of the covenant are in general to be set
out verbatim. 2 Chit. PI. 242, note k\
i Saund. PI. 392. But no unnecessary
covenant or other irrelevant parts of
the deed should be stated, i Saund.
233, note 2; 2 Saund. 366, note i.
For the statement of any superfluous
matter will be censured by the court.
Dundass v. Weymouth, 2 Cowp. 665;
Prices. Fletcher, 2 Cowp. 727; Bristow
v. Wright, 2 Dougl. 665; i Saund. PI.
393-
Thus in an action on a lease, if the
description of the premises be very
long, say, " certain tenements, with the
appurtenances particularly mentioned
and described in the said indenture,
situate," etc., and in order to avoid
variance it is advisable not to state the
abuttals, or any other very particular
' description, i Saund. 233, note 2; 2
Saund. 366, note i; Pitt v. Green, 9 East
188. If, however, personal property
have been demised, together with land,
etc., the above concise statement will
not suffice; and when the action is for
not repairing buildings, ditches, etc., it
is most usual to state all such premises.
2 Chit. PI. 242, note i.
And any exception, or condition, or
matter qualifying the covenant should
be stated, or an omission would be
fatal on non est factum. Howell v.
Richards, n East 633. But there is a
distinction between a proviso and an
exception. A proviso is properly the
statement of something extrinsic of the
subject matter of the covenant which
shall go in discharge of that covenant
by way of defeasance. An exception
is the taking out of the covenant some
part of the subject matter thereof. A
plaintiff need, therefore, never state a
proviso, i Saund. PI. 393.
Consideration. No consideration need
be stated unless a covenant operating
under the statute of uses be pleaded.
1 Saund. PI. 392. And the averment
that the defendant "for the considera-
tions in the indenture mentioned," etc.,
is sufficient. Homers. Ashford, 3 Bing.
322, II E. C. L. 121. Where the plain-
tiff states any part of the consideration,
he must state the whole, and failure to
do so is a fatal variance. Swallow v.
Beaumont, I Chit. Rep. 518, 18 E. C.
L. 153.
6. Eeference to Indenture. The refer-
ence to the indenture is not necessary.
2 Chit. PI. 243, note m.
863
Volume 5.
6631. COVENANT. 6631.
hath always, from the time of making the said indenture, hitherto
well and truly performed, fulfilled, and kept all things in the said
indenture contained on his part and behalf, to be performed, fulfilled,
and kept, according to the tenor and effect, true intent and meaning
of the said indenture, to wit, at Westminster aforesaid. 1 Yet protest-
ing that the said Richard Roe hath not performed, fulfilled, or kept
anything in the said indenture contained on his part and behalf, to
be performed, fulfilled, and kept, according to the tenor and effect,
true intent and meaning thereof, 2 the said John Doe saith, that after
the making of the said indenture {Here set out the particular breach or
breaches complained 0/), 3 contrary to the tenor and effect, true intent
and meaning of the said indenture, and of the said covenant of the
said Richard Roe by him in that behalf, so made as aforesaid, to wit,
at Westminster aforesaid. And so the said John Doe in fact saith, 4
that the said Richard Roe, although often requested so to do, hath
not kept the said covenant so by him made as aforesaid, but hath
broken the same, and to keep the same with the said John Doe
hath hitherto wholly neglected and refused, and still doth neglect
and refuse, to the damage of the said John Doe of 20* and there-
fore he brings his suit, etc.
( John Den
Pledges to prosecute < and
( Richard Fenn.
2. Under Hilary Rules.
Form No. 6631.
(Petersd. Prec. 7, 147.)
In the King's Bench.
Tenth day of March, 1884.
Middlesex. John Doe, by Jeremiah Mason, his attorney (or in his
mvn person), complains of Richard Roe, who has been summoned to
answer the plaintiff in an action of covenant. For that whereas
heretofore, to wit, on the first day of May, in the year J.S33, 6 by a
certain indenture then made between the plaintiff of the one part,
1. Performance by Plaintiff. This according to the legal effect. I Saund.
general averment of performance by 235, note 6. As to the averments, and
the plaintiff is unnecessary, i Saund. the statement of the breach in general,
235, note 5; 2 Chit. PI. 243, note o. see i Chit. PI. y& et seq.
But if there be a condition precedent, 4. This statement is unnecessary, for
performance must be specially shown, there being a breach of covenant al-
2 Chit. PI. 243, note o; i Saund. PI. 393. leged before, it is holden unnecessary
2. Protestation. There is no occa- to make a repetition of it in the conclu-
sion for this protestation or allegation sion. i Saund. 235, note 7.
of the general nonperfortnance of cove- 5. Damages. In all declarations in
nants by the defendant; the declaration covenant, a sum should be inserted
may proceed at once to the material sufficient to cover the real demand and
averments and the particular breach for interest to the time final of judgment,
which the action is brought. 2 Chit. PI. 2 Chit. PI. 244, note / ; i Saund. PI. 393.
243, note/. 6. Date. The date when the cove-
3. Statement of Breach. The breach nant purports to have been made, or
maybe in the negative of the covenant actually was made, should in general
fenerally. Harris v. Mantle, 3 T. R. be stated. Petersd. Prec. 4, note 2.
307; Procter v. Burdet, 3 Mod. 69. Or But see supra, note i, p. 863.
864 Volume 5.
6632. COVENANT. 6632.
and the defendant of the other part, the counterpart 1 of which said
indenture, sealed with the seal 2 of the defendant, the plaintiff now
brings here into Court,- the date whereof is the day and year afore-
said, the plaintiff {Here set out the substance of the covenant in the
words to be found in the appropriate form in the particular title}? and
although the plaintiff has always from the time of jnaking the said
indenture hitherto well and truly performed, fulfilled, and f kept all
things in the said indenture contained on his part and behalf to be
performed, fulfilled, and kept according to the tenor and effect, true
intent, and meaning of the said indenture; 4 Yet protesting 5 that the
defendant has not performed, fulfilled, or kept anything in the said
indenture contained on his part and behalf to be performed, fulfilled,
and kept, according to the tenor anfl effect, true intent and meaning
thereof; And the plaintiff says, that, after the making the said
indenture, {Here set out the particular breach or breaches complained
of), 6 contrary to the tenor and effect, true intent, and meaning of
the said indenture, and of the said covenant of the defendant by him
in that behalf so made as aforesaid; And the plaintiff in fact says,
that the defendant, although often requested so to do, has not kept
the said covenant so by him made as aforesaid, but has broken the
same, and to keep the same with the plaintiff has hitherto wholly
neglected and refused, and still does neglect and refuse. To the
damage of the plaintiff of 20; 7 and therefore he brings his suit, etc.
II. IN THE UNITED STATES. 8
Form No. 6632.
State of West Virginia, ) h
County of Preston. \
John Doe complains of Richard Roe of a plea of covenant broken; 9
for this, to wit, that heretofore, to wit, on the first day of June, i897,
by a certain indenture made between the said defendant of the first
part and the said plaintiff of the second part, 10 which said indenture,
sealed 11 with the seal of the said defendant, is to the court now here
1. Profert. See supra, note 3, p. West Virginia the words " plea of cove-
863. nant broken" are used. In the other
2. Seal. The declaration must state common-law states it is customary
that the contract was under seal. 2 Ld. to use the words "plea of breach of
Raym. 1336, 1536. covenant."
3. Covenant, How Set Out. See supra, 10. With Whom Covenant was Hade.
note 5, p. 863. It must appear, in the declaration,
4. Performance by Plaintiff. See with whom the covenant was made.
supra, note I, p. 864. Keatly v. McLaugherty, 4 Mo. 221;
5. Protestation. See supra, note 2, Perkins v. Reeds, 8 Mo. 33.
p. 864. 11. Seal. The declaration must show
6. Statement of Breach. See supra, that the instrument upon which the ac-
note 3, p 864. tion is founded is a sealed instrument.
7. Damages. See supra, note 5, Wineman v. Hughson, 44 111. App. 22;
p. 864. Manning v. Perking, 86 Me. 419; Pier-
8. For the formal parts of a declara- son v. Pierson, 6 N. ], L. 168; Bilder-
tion in any common-law state consult back v. Pouner, 7 N. J. L. 64. And it is
the title DECLARATIONS. not sufficient to allege that the parties
9. In New Hampshire, Virginia and made their covenant, the word " cove-
5 E. of F. P. 55. 865 Volume 5.
6632.
COVENANT.
6632.
shown, 1 the date whereof is the day and year aforesaid, the said
defendant, for a certain valuable consideration therein mentioned, 2
did (Here set out the substance of the covenant in the words to be found in
the appropriate form in the particular title)? as from the said deed,
reference being had thereto, will appear. And the said plaintiff in
fact saith that, from the time of the execution of said deed, he hath
at all times kept and performed all and singular the covenants on
his part to be kept and performed, according to the tenor and effect,
true intent and meaning of the said deed; 4 yet the said defendant,
since the making of said deed, has not performed and kept said cove-
nants in the said deed contained, to be on his part kept and per-
formed, as by the said deed is of him required, and particularly in
this, that (Here set out the particular breach or breaches complained of "). 5
nant" not importing a sealed instru-
ment. Hays v. Lasater, 3 Ark. 565.
Nor does the declaration sufficiently
show that the parties to the covenant
sealed it, although it is set out in hac
verba and contains the words " witness
our hands and seals." Hays v. Lasa-
ter, 3 Ark. 565. But where, in describ-
ing the instrument, words of art, such
as deed, indenture, etc., are used, such
words import the seal. Wineman v.
Hughson, 44 111. App. 22.
The declaration should show that
the agreement on which the action is
founded was originally sealed by the
defendant, and remained under seal at
the time of declaring, or accounting for
the omission of such averment. It is
not sufficient to say "And for the faith-
ful performance of the said covenant
and agreement the said parties did
thereunto set their hands and affix their
seals." Smiths. Emery, 12 N. J. L. 53.
See also supra, note 4, p. 863.
1. Profert. In an action of covenant,
the declaration should contain a profert
in curia of the agreement set forth or
an excuse for the omission of it. And
the words of reference " as by the said
covenant and agreement, reference
being thereunto had, may more fully
appear," inserted in a declaration, after
a statement of the contents of the in-
strument, are no profert, nor are they
sufficient to supply the want. Smith v.
Emery, 12 N. J. L. 53.
See also supra, note 3, p. 863.
2. Consideration. It is not necessary
to aver or prove a consideration. Buck-
master v. Grundy, 2 111. 310; Jones v.
Thomas, 21 Gratt. (Va.) 96. See supra,
note 5, p. 863.
3. Covenant, How Set Out. A cove-
nant should be pleaded according to its
Houghtaling, 35 Mich. 127. But it is
not necessary to set out the whole deed,
but only those covenants which con-
tain mutual stipulations and conditions
which are essential to the plaintiff's
cause of action. Killian v. Herndon,
4 Rich. L. (S. Car.) 196; Hughes v.
Houlton, 5 Blackf. (Ind.) 180.
In a declaration on a covenant, it
should be set out without any inter-
mediate inducement, but if averments
are made which may be treated as mere
surplusage they will not vitiate the
declaration. Jones v. Thomas, 21 Gratt.
(Va.) 96.
4. Performance by Plaintiff. Where
covenants are mutual and dependent,
the declaration must aver that the
plaintiff was able, ready and willing to
perform on his part. Dunlap v. Chi-
cago, etc., R. Co., 151 111. 409; Bourland
v. Sickles, 26 111. 497; Davis v. Wiley,
4 111. 234; Hunter v. Miller, 6 B. Mon.
(Ky.) 612; Keatly v. McLaugherty, 4
Mo. 221; Potts v. Point Pleasant Land
Co., 49 N. J. L. 411; Arnold v. Cole, 42
W. Va. 663.
5. Breaches, How Stated. Breaches of
a covenant must be specified. English
v, Horner, 3 N. J. L. 382; Ridgell v.
Dale, 16 Ala. 36. But one good breach is
sufficient. Casters. Ashley, i Ark. 325.
While in an action for breach of a
covenant the covenant may be set out
in its own words, the breach must be
assigned in accordance with its mean-
ing. Chicago, etc., R. Co. v. Hoyt. 37
111. App. 64. And a breach can be as-
signed in the words of the covenant
only where those words mean the
same, whether read with the context or
without the rest of the instrument.
Chicago, etc., R. Co. v. Hoyt, 44 111.
App. 48. As where the covenant is to
form in the deed, leaving its effect to do, or forbear to do, a particular act.
e ascertained afterward. Peck v. Carter v. Denman, 23 N. J. L. 260.
866
Volume 5.
6632.
COVENANT.
6632.
And so the said plaintiff says, that the said defendant, although often
requested 1 so to do, has not kept the said covenant so by him made
as aforesaid, but hath broken the same with the said plaintiff, hath
hitherto wholly neglected and refused, and still doth neglect and
refuse to keep the same, 2 to the damage of the said plaintiff of one
thousand dollars. 3 And therefore he sues.
Jeremiah Mason, P. Q.
1. Request to Defendant. Where a
special request is not necessary to im-
pose on the defendant the obligation
to pay, nor to render him liable on his
covenant, it is not necessary to be
averred. Smith v. Emery, 12 N. J. L.
53-
2. That part of the declaration be-
ginning "And so the said plaintiff says
that the said defendant, although often
requested so to do, hath not kept his
said covenant, but hath broken the
same," etc., is a merely formal allega-
tion and may be omitted. 4 Min.
Inst., pt. 2, p. 587; 3 Rob. Pr. 362 et seq.,
582 et seq.; and see supra, note 4,
p. 864.
3. Damages. See supra, note 5, p.
864.
867
Volume 5.
COVENANTS.
For Forms in Actions for Breach of Particular Covenants, see the titles
ANNUITIES, vol. i, p. 789; APPRENTICES, vol. 2, p.
i- BUILDERS AND ARCHITECTS, vol. 4, p. 121;
CHARTER-PARTIES, vol. 4, P- 7595 GOOD -WILL;
LANDLORD AND TENANT; LEASES; PARTNER-
SHIP ; PARTY WALLS; VENDOR AND PUR-
CHASER; and also the GENERAL INDEX to this work.
For Forms in Actions to Compel Specific Performance of Covenants, see
the title SPECIFIC PERFORMANCE.
COVERTURE.
BY THOMAS E. O'BRIEN.
I. PLEA, ANSWER OR AFFIDAVIT OF DEFENSE, 868.
1. Generally, 869.
2. Setting Up Exempted Liability, 870.
II. REPLICATION OR REPLY, 872.
1. Denying Coverture, 872.
2. Denying Exempted Liability, 873.
CROSS-REFERENCES.
For Forms of Pleas setting up Coverture in Abatement, see the title
ABATEMENT, PLEAS IN, vol. i, p. 21.
For Forms of Answers and Pleas setting up matter of defense by way of
Confession and Avoidance, generally, consult the title CONFES-
SION AND AVOIDANCE, ante, p. 37, and the GENERAL
INDEX to this work.
For matters of Procedure, see the title HUSBAND AND WIFE, 10
ENCYCLOPAEDIA OF PLEADING AND PRACTICE, p. 191.
I. PLEA, ANSWER OR AFFIDAVIT OF DEFENSE. 1
1. Coverture, Who may Plead. The erture of his testatrix. Bakers. Gar-
plea of coverture is a personal privi- ris, 108 N. Car. 218. And the children
lege of a married woman, and of those may plead the coverture of their
who may derive their title through her, mother. Ellis v. Baker, 116 Ind. 408.
and it is for her and them only to set it In this case a married woman had
up in defense. Newhart v. Peters, 80 signed a note and executed a mortgage
N. Car. 166; Bennett v. Mattingly, no upon her separate estate as security for
Ind. 197; Johnson v. Jouchert, 124 Ind. debts of her husband, and died intes-
105. Thus, an executor may plead cov- tate, leaving children. An answer to
868 Volume 5.
6633.
COVERTURE.
6633.
1. Generally.
Form No. 6633.
(2 Chit. PI. 472.)
In the King's Bench (or Common Pleas or Exchequer).
Trin. Term, 51 Geo. III.
Jane Roe \
ats.
John Doe. }
an action to foreclose said mortgage,
alleging that " the note in suit was the
note of said John K. Ellis, and said
Clara A. Ellis signed such note as his
surety; that, on the qth day of August,
i8</, said Clara A. Ellis was a married
woman, the wife of defendant, John K.
Ellis; that the real estate described in
the complaint herein, as mortgaged to
plaintiff, was, on said ?//; day of August,
i8<jr, and had continued to be since, the
sole and separate property of said Clara
A. Ellis, except as hereinafter shown,
and was a gift from her father, Jesse K.
Baker; that, on the - day of
, said Clara A. Ellis died at Martin
county, intestate, leaving as her heirs
at law these infant defendants and their
co-defendant, saidJoAn K. Ellis, when
the title to the two-thirds part of such
real estate was cast upon these infant
defendants, and the only title or inter-
est they have in said real estate is by
such inheritance; and that repeatedly,
before her death, said Clara A. Ellis de-
clared to said John K. Ellis and others,
that when an effort should be made to
foreclose the mortgage now in suit she
would set up her suretyship and ask
to be released from such mortgage and
note," was held to constitute a sufficient
defense to the action, the court holding
that the defendants were the privies of
the deceased, both in blood and estate,
and had the right to avail themselves
of any defense which, if living, sfte
might have pleaded, including the de-
fense founded on coverture.
Coverture, How Pleaded In Abate-
ment. Where the objection does not
go to the liability of the defendant, but
is merely that the husband ought to
have been sued jointly with her, the
plea should be in abatement, t Chit.
PI. (i6th Am. ed.) 465. Thus, where,
since entering into the contractor com-
mitting the tort, the defendant has mar-
ried. i Chit. PI. (i6th Am. ed.) 465;
Lovell v. Walker, 9 M. & W. 299;
Sheppard v. Kindle, 3 Humph. (Tenn.)
80; Kennard v. Sax, 3 Oregon 263.
And the same is true where the objec-
tion is made that the plaintiff sued
alone when her husband should have
been joined as a party plaintiff. James
v. Stewart, 9 Ala. 855; Hayden v. Attle-
borough, 7 Gray (Mass.) 338; Morgan
v. Cubitt, 3 Exch. 612; Milnerw. Milnes,
3 T. R. 627; Caudell v. Shaw, 4 T. R.
361.
For forms of pleas in abatement in
both classes of cases consult the title
ABATEMENT, PLEAS IN, vol. i, Forms
Nos. 65 to 71.
In Bar. Where, however, the de-
fense goes to the root of the demand and
destroys the cause of action, as where
the coverture existed at the time the
supposed contract was made, the plea
should be in bar. Morris v. Lindsley,
45 N. J. L. 435; Kennard v. Sax, 3
Oregon 263; Steer v. Steer, 14 S. &
R. (Pa.) 379; Roseberry v. Roseberry,
27 W. Va. 759.
To be available as a defense, cover-
ture must be specially pleaded. Mar-
ion -v. Regenstein, 98 Ala. 475; Long
v. Dixon, 55 Ind. 352; Landers v. Doug-
las, 46 Ind. 522; Elson v. O'Dowd, 40
Ind. 300; McDaniel v. Carver, 40 Ind.
250; Van Metre v. Wolf, 27 Iowa 341;
Von Schrader v. Taylor, 7 Mo. App.
361; Baker v. Garris, 108 N. Car. 218;
Neville v. Pope, 95 N. Car. 346; Bur-
nett v. Nicholson, 86 N. Car. 99; Vick
v. Pope, 81 N. Car. 22; Caldwell v.
Brown, 43 Tex. 216; Phelps v. Brack-
ett, 24 Tex. 236.
Mere Plea of Coverture, When Not Suffi-
cient. When, by statute, a married
woman is given absolute control over
her separate property, and permitted to
sue and be sued as a. feme sole, there is
a presumption that she had power to
make the contract upon which the suit
is brought, and a mere plea of cover-
ture, without additional averments to
show that the contract is one beyond
her power to make, is insufficient. Britt
v. Pitts, in Ala. 401; Strauss v. Glass,
809
Volume 5.
6634. COVERTURE. 6635.
And the said Jane Roe in person 1 comes and defends the wrong
and injury, when, etc., and says that the said John Doe ought not to
have or maintain his aforesaid action thereof against her, because
she says that she, the said Jane Roe, before, and at the time of the
making of the said several supposed promises and undertakings in
the said declaration mentioned, was and still is the wife of one
Richard Roe, to wit, at Westminster aforesaid, and this the said Jane
Roe is ready to verify, wherefore she prays judgment if the said John
Doe ought to have or maintain his aforesaid action thereof against
her, etc.
Form No. 6634.
(Bullitt's Civ. Code Ky. (1895), p. 639.)
John Doe, plaintiff, ) Lee Circuit Court.
against V Answer of Defendant.
Martha Roe, defendant. )
The defendant, Martha Roe, says that at the time of the making of
the note sued on, she was (and yet is) a married woman, the wife of
Richard Roe.
Oliver Ellsworth, Attorney.
(Verification^
2. Setting Up Exempted Liability.
Form No. 6635.*
State of Indiana, \ In the Posey Circuit Court.
Posey County. [ October Term, i87.
John Doe \
against j- Separate Answer of Julia Roe.
Richard Roe and Julia Roe. )
Julia Roe, defendant herein, for separate answer to plaintiff's com-
plaint, says, that at the time of the execution of the said note and
mortgage she was a married woman, the owner of the real estate
described in the mortgage; that the said note was given for a debt
then owing by her husband and co-defendant, Richard Roe, and that
108 Ala. 546; Wofford v. Baker, 80 Ala. person, and not by attorney. 2 Chit.
303; Miller v. Shields, 124 Ind. 166; PI. 472, note i; I Chit. PI. (i6th Am.
Ferns v. Holmes, 8 Daly (N. Y.) 217. ed.) 444; Stephens PI. 65; 2 Saund.
And the same is true in all cases where 2ogc, note; Quids v. Sansom, 3 Taunt,
contracts are ordinarily enforceable 261; Keddeslin v. Meyer, 2 Miles (Pa.)
against a married woman. Vansyckel 295; Phillips v. Burr, 4 Duer (N. Y.)
v. Woolverton, 56 N. J. L. 8; Hinkson 113.
v. Williams. 41 N. J. L. 35. 2. For the form of verification in a
Tor the formal parts of an answer or particular jurisdiction consult the title
lea in a particular jurisdiction consult VERIFICATIONS.
the titles ANSWERS IN CODE PLEADING, 3. This is in substance the answer in
i, p- 799; and PI.EAS. For the Allen v. Davis, 101 Ind. 187. In that
mal parts of an affidavit of defense case the answer was held to constitute
the title AFFIDAVITS OF MERITS, a good defense and that a mortgage
executed by a married woman to secure
roper person. At common law, her husband's debt could not be bind-
lefendant be still married, she ing on her
mst plead her coverture in proper
870 Volume 5.
6636. COVERTURE. 6636.
she executed the said note and mortgage jointly with her said hus-
band as his surety. 1
Oliver Ellsworth, Attorney for Defendant.
( Verification .) 2
Form No. 6 6 3 6 . 3
John Doe ) In the Court of Common Pleas, No. 4,
against V of Philadelphia County.
Richard Roe and Martha Roe. ) March Term, i8P7, No. 101.
City and County of Philadelphia, ss.
Martha Roe, one of the defendants, being duly sworn, for defense
to the claim of plaintiffs in this suit, says, that at the time of the
making of the promissory note on which this suit has been brought,
this defendant was and still is the wife of Richard Roe, who has been
joined with her in this suit, and that the consideration of the said
note was not for necessaries furnished by said plaintiffs for the use
of herself and family. That her said husband resided with this
defendant at the time of the making of the said note, and still con-
tinues to live and reside with her. That the title to the property on
which the defendant resides is not in her name, as is alleged in the
affidavit filed by the plaintiff in this suit. This defendant further
says that she has paid to said plaintiffs, on account of the said note,
the sum of two hundred and eighty dollars, and that the said note was
given by mistake to the plaintiffs for two hundred dollars above the
true amount of their claim, and further, says not.
Martha Roe.
Sworn to and subscribed before me this first day of March, i897.
Norton Porter, Notary Public.
1. Contract of Suretyship Void as to Pennsylvania statute providing that
Married Woman. In some states it is " In all cases where debts may be con-
provided by statute that married women tracted for necessaries, for the support
shall not enter into any contract of and maintenance of the family of any
suretyship, whether as indorser, guar- married woman, it shall be lawful for
antor, or in any other manner, and the creditor, in such case, to institute
that such contract as to her shall be suit against the husband and wife for
void. Homer's Stat. Ind. (1896), the price of such necessaries, and after
5119; Bright. Pur. Dig. Pa. (1894), ^>. obtaining a judgment have an execu-
1299, 24. But in an action upon a tion against the husband alone; and if
promissory note, executed by a married no property of the said husband be
woman and secured by mortgage, exe- found, the officer executing the said
cuted by her jointly with her husband, writ shall so return, and thereupon an
there is no presumption that she acted alias execution may be issued, which
as surety or guarantor and the burden may be levied upon and satisfied out
is upon her to show that she is not of the separate property of the wife,
liable. Miller v. Shields, 124 Ind. 166. secured to her under the provisions of
2. For the form of verification in a the first section of this act: Provided,
particular jurisdiction consult the title That judgment shall not be rendered
VERIFICATIONS. against the wife, in such joint action,
3. This is in substance the affidavit unless it shall have been proved that
in Imhoff v. Brown, 30 Pa. St. 504. the debt sued for in such action was
The affidavit was deemed sufficient, the contracted by the wife, or incurred for
court holding that it is sufficient for a articles necessary for the support of the
married woman sued on a promissory family of the said husband and wife."
note to allege coverture in her affidavit Bright. Pur. Dig. Pa. (1894), p. 1302,
of defense, and to state that the note 42. A similar statute exists in Texas.
was not given for necessaries, the Tex. Rev. Stat. (1895), arts. 1201, 2970.
871 Volume 5.
6637.
COVERTURE.
6637.
II. REPLICATION OR REPLY. 1
1. Denying Coverture.
Form No. 6637.
(2 Chit. PI. 638.)
In the Kings Bench (or Common Pleas or Exchequer).
Trin. Term, 67 Get. III.
John Doe \
agt.
Martha Roe. )
And the said John Doe saith that his said bill (or the said writ), by
reason of anything by the said Martha Roe in her said plea above
alleged, ought not to be quashed, because he says that at the time of
exhibiting the said bill (or at the time of issuing of the said writ)
against the said Martha Roe, she, the said Martha Roe, was not mar-
1. Requisites Generally. Where, un-
der special circumstances, a married
woman is liable notwithstanding her
coverture, the replication must state
such special circumstances. 2 Chit.
PI. 638, note a; Arnold v. Engleman, 103
Ind. 512; Cupp v. Campbell, 103 Ind.
213; Murray v. Keyes, 35 Pa. St. 384;
Mahon v. Gormley, 24 Pa. St. 80.
For the formal parts of a replication or
reply in a particular jurisdiction con-
sult the title REPLICATIONS.
Precedents. In De Gaillon v. L'Aigle,
I B. & P. 357, the replication, omitting
formal parts, was as follows: " that be-
fore and at the time of making the said
several promises and undertakings in
the said declaration mentioned and from
thence hitherto, the said John Martin
Harel UAigle lived and resided in parts
beyond the seas, out of this kingdom,
to wit, at Hamburgh, and that during all
that time the said Victoire Harel L'Aigle
lived in this kingdom separate and
apart from the said/^/^ Martin Harel
L'Aigle and followed and carried on the
trade and business of a merchant, as a
single woman and a sole trader, to wit,
at Westminster \ etc., and that the plain-
tiff did not give any credit to the said
John Martin Harel, L'Aigle, but traded
and dealt with the said Victoire Harel
as a feme sole and on her sole credit;
and that the said Victoire Harel made
the said several promises and under-
takings in the said declaration men-
tioned as such feme sole as aforesaid "
Demurrer to this replication was over-
ruled and judgment entered for the
plaintiff. In this case the husband of
defendant, who was an English-
woman, was an alien and had never
resided in England, and the decision
seems to have turned upon that fact.
But where the husband is an English-
man the right of the wife to sue and be
sued as & feme sole seems to be limited
to cases of civil death of the husband.
See Robinson v. Reynolds, i Aiken
(Vt.) 174, where the leading English
cases are considered and discussed.
See also note to Boggert v. Frier, n
East 301.
In Britt v. Pitts, in Ala. 401, it was
held that under section 2347 of the code
of 1886, providing that for all torts com-
mitted by a married woman she must
be sued alone, where A sued B in deti-
nue to recover certain cotton and C
interposed a claim to the property,
filing a bond signed by plaintiff and
defendant as sureties, the property be-
ing subsequently released to defendant,
by whom it was sold and the proceeds
converted, and later a judgment was
rendered against the sureties on the
bond, which judgment was paid by
plaintiff, in an action brought against
defendant to recover damages sus-
tained by defendant's failure to deliver
the cotton, a reply to an answer setting
up the coverture at the time of signing
the bond, " that the cause of action set
forth in the complaint is for the tort al-
leged to have been committed by the de-
fendant, and if she be a married woman
as alleged in the plea she is liable for
said tort and said plea is no answer to
the action," was sufficient and that
plaintiff was entitled to recover.
872
Volume 5.
6638. COVERTURE. 6638.
ried * to the said Richard Roe, in the said plea mentioned, in manner
and form as the said Martha Roe hath above in her said plea in that
behalf alleged, and this "he, the ^i^ John Doe, prays may be inquired
of by the country, etc.
2. Denying Exempted Liability.^
Form No. 6638. 2
State of Indiana, \ In the Posey Circuit Court,
Posey County. \ October Term, i87.
John Doe \
against V Reply.
Richard Roe and Martha Roe. )
The plaintiff admits that defendant is a married woman, as in her
answer alleged, but says that the consideration of the aforesaid notes
was certain personal property purchased by the defendant, Martha
Roe, for use in her own separate business, from Francis Fern, the
payee named in the said notes.
Wherefore plaintiff demands judgment, as prayed for in his com-
plaint.
Oliver Ellsworth, Attorney for Plaintiff.
1. If defendant had been married but and that she executed them as surety
her husband dead, the latter fact should for her husband, and that no part of
be replied. 2 Chit. PI. 638, note a. the consideration for which the notes
2. This form is based upon the reply were given was received by her. It
in Chandler v. Spencer, 109 Ind. 553. was held that plaintiff's reply was suffi-
In that case the action was brought cient without alleging that the property
against husband and wife to recover was delivered to, or received by, de-
on their promissory notes, executed by fendant.
them, and which had been assigned to See also substance of a sufficient re-
plaintiff. The wife, in a separate an- ply in Arnold v. Engleman, 103 Ind.
swer, alleged that she was a married 512.
woman when she executed the notes,
873T Volume 5.
CREDITORS' SUITS.
BY W. R. BUCKMINSTER.
I. To SUBJECT PROPERTY NOT REACHABLE BY EXECUTION, 874.
i. In General, 874.
a. Dower Interest not Set Off, 883.
3. Judgment Standing in Favor of Debtor, 884.
4. Patent-right, 886.
5. Property in Name of Another where Purchase Money was Fur-
nished by Debtor, 887.
e. Royalty Payable Under a Publisher s Contract, 891.
7. Treasury Warrant, 894.
8. Trust Property, 895.
a. Devise in Trust, 895.
b. Express Trust, 899.
c. Secret Trust, 902.
9. To Enjoin Transfer of Note and Foreclosure of Mortgage Held
by Debtor and to Apply Same to Plaintiff's Claim, 907.
II. To OBTAIN DISCOVERY OF PROPERTY OF JUDGMENT DEBTOR,
909.
ill. BY CREDITORS OF A CORPORATION, 910.
i. For Ratable Distribution of Assets, 910.
. To Collect Unpaid Stock Subscriptions, 914.
CROSS-REFERENCES.
For Forms in Suits to Set Aside Fraudulent Conveyances, see the title
FRAUDULENT CONVEYANCES.
For Forms in Proceedings to Subject Decedent 's Estate to Payment of
Debts in Default of Personal Property, see the title PROS A TE
AND ADMINISTRA TION.
For Forms in Proceedings Supplementary to Execution, see the title SUP-
PLEMENTAR Y PROCEEDINGS.
For matters of Procedure, generally, see the title CREDITORS' SILLS,
5 ENCYCLOPAEDIA OF PLEADING AND PRACTICE, p. 388.
I. To SUBJECT PROPERTY NOT REACHABLE BY EXECUTION. 1
1. In General.
1. Requisites of Bill or Complaint, Gen- to give the judgment its legal and full
erally. No particular form of bill or effect. Dunham v. Cox, 10 N. J. Eq.
formal specific allegations are necessary 467.
to constitute the bill a good one, but For forms of bills in equity, gener-
must be stated from which, at ally, consult the title BILLS IN EQUITY,
t '-i V nference may be drawn ' that vol< 3' P- 4 1 ?- For the formal parts of
a court of equity is required complaints or petitions, generally, con-
874 Volume 5.
6639.
CREDITORS' SUITS.
6639.
suit the title COMPLAINTS, vol. 4, p.
1019.
Bill with Doable Aspect. "As to the
permissibility of framing a bill with a
double aspect, see 5 Encycl. of PI. and
Pr. 560.
Jurisdictional Facts. It should ap-
pear from the bill that the court in
which it is filed has jurisdiction of the
action. 5 Encycl. of PI. and Pr. 557.
But in an action under Bullitt's Civ.
Code Ky. (1895), 439, to subject an
interest in land it is not necessary to
allege expressly that the land was
situated in the county where the suit
was brought when this fact is made
plainly evident by the pleadings and
exhibits. Bryant v. Bryant, (Ky. 1892)
20 S W. Rep. 270.
Invitation to Other Creditors. As to
when it is necessary to state in whose
behalf the bill is filed and when it must
contain an invitation to other creditors
to join, see 5 Encycl. of PI. and Pr.
558.
Negation of Collusion with Debtor.
In the absence of some statute or rule
of court requiring it, the complainant
need not allege that the bill is not pre-
ferred and prosecuted by collusion, or for
the purpose of protecting the property
and effects of the debtor against the
claims of other creditors. Hammond v.
Hudson River Iron, etc., Co., 20 Barb.
(N. Y.) 378. Such a rule exists in Wis-
consin. Sanb. & B. Anno. Stat. Wis.
(1889); 3029, note. In New York also
there was formerly such a rule. McEl-
wain v. Willis, 3 Paige (N. Y.) 505. But
this rule was superseded by the code.
Quick v. Keeler, 2 Sandf. (N. Y.) 231.
And even where the rule exists, no
averment is necessary if the complaint
states facts from which it is apparent
that there is no collusion. Faber v.
Matz, 86 Wis. 370.
Description of Indebtedness. A debt
need not be reduced to judgment in or-
der to maintain a bill in equity under
Mass. Pub. Stat. (1882), c. 151, 2, cl.
ii, and Stat. (1884), c. 285, to reach and
apply in payment of a debt property of
the debtor which cannot be attached or
taken on execution at law, but in such
case the bill should set out the cause of
action as specifically as is required in
an action at law. Sandford v. Wright,
164 Mass. 85. See also Elwell v. John-
son, 3 Hun (N. Y.) 558; Louis v. Bel-
gard, (Supreme Ct.) 17 N, Y. Supp. 882.
Where, however, a judgment has been
recovered, it is not necessary to allege
the indebtedness on which it was re-
875
covered. Tatum v. Rosenthal, 95 Cal.
129.
Exhaustion of Legal Remedies Gen-
erally. To entitle a judgment creditor
to go into chancery, the bill must show
that he has exhausted his legal remedies
Roper v. McCook, 7 Ala. 318; Newman
v. Willetts, 52 Ill.gS; Webster v. Clark,
25 Me. 313; Voorhees v. Howard, 4
Keyes (N. Y.) 371; Rhodes v. Cousins,
6 Rand. (Va.) 188; Daskam v. Neff, 79
Wis. 161; Taylor v. Bowker, in U. S.
no, 6 Am. and Eng. Corp. Cas. 609. Or
must allege facts excusing complain-
ant's failure so to do. Corey v. Greene,
51 Me. 114.
The Judgment. The bill should set
forth a judgment. Taylor v. Bowker,
in U. S. no, 6 Am. and Eng. Corp. Cas.
609; Block v. Marks, 47 La. Ann. 107.
And where a transcript of the judg-
ment must be recorded in another
county than that in which it is recov-
ered in order to make the judgment a
lien upon land belonging to the de-
fendant in such other county, the bil>
must contain an averment that a tran-
script of the judgment was duly re-
corded. Barnes v. Beighly, 9 Colo. 475.
In pleading a right acquired under a
judgment of an inferior court of limited
jurisdiction, sufficient should be stated
to show that such court had jurisdic-
tion to render such judgment. Dix v.
Briggs, 9 Paige (N. Y.) 595. See also
Siegmund v. Ascher, 37 111. App. 122.
In reciting the judgment recovered, a
variance of six cents assessed for costs
is not a fatal variance. Baggott v.
Eagleson, Hoffm. Ch. (N. Y.) 377. Nor
will relief be denied on the ground that
judgment was entered on a later date
than that stated in the bill, if it appears
that the later judgment entry was
merely to correct the one relied on be-
fore, or does not appear that counsel
did not have notice of the correction or
were misled by the variance. Marshall
First Nat. Bank v. Hosmer, 48 Mich.
200. See also Baggott v. Eagleson,
Hoffm. Ch. (N. Y.) 377.
Where the bill is brought by one not a
party to the judgment, the bill must
allege complainant's ownership of the
judgment in a proper manner, and an
allegation of ownership of an execution
issued thereon and returned unsatis-
fied is not sufficient. Richardson v.
Gilbert, 21 Fla. 552. But the assignee
of a judgment need not aver the con-
sideration for the assignment. Gleason
v. Gage, 7 Paige (N. Y.) 121. Nor that
it was in writing. Jones v. Smith, 92
Volume 5.
6639.
CREDITORS' SUITS.
6639.
Ala. 455. In such case, however, an
assignment of the whole judgment
should be alleged if the complainant
seeks the payment of the judgment in-
cluding costs. Strange v. Longley, 3
Barb. Ch. (N. Y.) 650. And an aver-
ment that complainant recovered the
judgment in his own name for the use
of another, and further that the said
judgment is now his property, is suffi-
cient. Postlewait v. Howes, 3 Iowa
365-
The Execution. The bill should ai-
lege that execution actually issued.
Taylor v. Bowker, in U. S. no, 6 Am.
and Eng. Corp. Cas. 609; Roper v. Mc-
Cook, 7 Ala. 318. And should state
the time when the execution was re-
turnable. Cassidy v. Meacham, 3
Paige (N. Y.) 311; Albright v. Herzog,
12 111. App. 557. Except where the exe-
cution is made by law returnable in a
specified time, in which case the bill
need not set out what time it was made
returnable. Strange v. Longley, 3 Barb.
Ch. (N. Y.) 650.
An allegation that on the same day
the judgment was recovered a fi. fa.
was " sued out and prosecuted," and
that before delivery it was indorsed
" and was then delivered to the said
sheriff to be executed in due form of
law," was held to be a sufficient aver-
ment of delivery to the sheriff before
the return day. Conant v. Sparks, 3
Edw. Ch. (N. Y.) 104.
Where a creditor's bill is founded
upon a judgment upon which an exe-
cution may be issued to any county,
the complainant must show affirma-
tively in his bill that he has exhausted
his remedy by issuing an execution to
the county in which the defendant re-
sided at the time that such execution
was issued, or must state in his bill
some sufficient legal excuse for issuing
his execution to a different county.
Reed v. Wheaton, 7 Paige (N. Y.) 663;
Leggett v. Hopkins, 7 Paige (N. Y.) 149.
And it should be specifically alleged
that at the time of the issuance of the
execution defendant was a resident of
the county to which the execution is-
sued. Preston v. Wilcox, 38 Mich. 578;
Wheeler v. Heermans, 3 Sandf. Ch. (N.
Y.) 597; Smith v. Fitch, Clarke Ch.
(N. Y.) 265; Hope v. Brinckerhoff, 3
Edw. Ch. (N. Y.) 445. But in Alabama
it is held that the bill need not contain
a specific allegation that the execution
was issued to the county in which the
defendant had a fixed and known resi-
dence, and that it devolves upon the
defendant to show that the execution
was issued to an improper county.
Brown -v. Bates, 10 Ala 432, followed
in Nix v. Winter, 35 Ala. 309.
The bill need not specifically allege
that the writ of fieri facias directed the
amount of the judgment to be made
out of the lands and tenements of the
defendant, when an ordinary execution
as prescribed by statute authorizes a
levy on the debtor's lands, as it will be
presumed, in the absence of proof to
the contrary, that the execution was
regular and conformed to the law.
Brown v. Bates, 10 Ala. 432.
The Return. The bill should allege
that the execution was returned unsat-
isfied. Mixon v. Dunklin, 48 Ala. 455;
Roper v. McCook, 7 Ala. 318; Newman
v. Willetts, 52 111. 98; Taylor z\ Bow-
ker, in U. S. no, 6 Am. and Eng. Corp.
Cas. 609. And should allege an actual
return of the execution before the filing
of the bill, stating the time when it was
made. Shea v. Dulin, 3 MacArthur
(D. C.) 339; Albrigh v. Herzog, 12 111.
App. 557; Preston v. Wilcox, 38 Mich.
578; Cassidy v. Meacham, 3 Paige (N.
Y.) 311. And where it appears that the
execution was returned on a day sub-
sequent to the commencement of the
suit, the bill will be dismissed, although
the objection was not taken in the an
swer, and although the execution as
exemplified was returnable and proved
to have been returned and filed prior
to the filing of the bill. Pardee v. De
Cala, 7 Paige (N. Y.) 132. But see
Long v. Page, 10 Humph. (Tenn.) 541,
where it was held that an objection so
taken came too late.
But the return need not be set forth
in hcec verba. Daskam v. Neff, 79 Wis.
161. A statement that an execution
had been issued on a judgment and
" duly returned unsatisfied " is suffi-
cient. Page v. Grant, 9 Oregon 116.
And the return milla bona is sufficient
without stating that search was made
for property by the officer. Suydam v.
Beals, 4 McLean (U. S.) 12. But a re-
turn that defendant has " no goods"
is insufficient under a statute allowing
the bill where the judgment debtor has
not personal or real property sufficient
to satisfy the judgment. State Bank
v. Oliver, I Disney (Ohio) 159.
An allegation that the sheriff returned
that A and B had no goods, etc., was
held to show. a want of individual as
well as joint goods. Conant v. Sparks,
3 Edw. Ch. (N. Y.) 104.
Insolvency of Debtor. Where it is
876
Volume 5.
6639.
CREDITORS' SUITS.
6639.
alleged that an execution has been
issued and returned unsatisfied, it need
not be otherwise distinctly averred that
the debtor has no other property than
that out of which the creditor seeks
payment. McElwain v. Willis, 9 Wend.
(N. Y.) 559; Page v. Grant, 9 Oregon
116; Daskam v. Neff, 79 Wis. 161. But
insolvency is frequently an excuse for
exhausting legal remedies, and in such
case the allegation as to insolvency
should be clear and specific. 5 Encycl.
of PI. and Pr. 567. The debtor's insol-
vency need not be stated in terms when
facts are alleged from which it may be
deduced. Dunsback v. Collar, 95 Mich.
611; and see Turner v. Adams, 46 Mo.
95-
Description of Property in Alternative.
Under the Alabama act of 1844, which
enacted " that whenever an execution
against the property of a defendant
shall have been issued on a judgment
of law, and shall have been returned
unsatisfied, * * * the party suing out
such execution may file a bill in chan-
cery against such defendant, and any
other person or persons, to compel the
discovery of any property, money, or
thing in action, belonging to the de-
fendant, and of any property, money,
or thing in action, due to him, or held
in trust for him," etc., it was held suf-
ficient to allege in the bill the supposed
interests of the defendant in property,
etc., in the general terms of the stat-
ute, either positively or in the alterna-
tive. Brown v. Bates, 10 Ala. 432. So
under Ala. Civ. Code (1886), 3540.
Floyd v. Floyd, 77 Ala. 353.
Intent. The bill need not allege the
concealment by defendant of property
or effects to have been with the inten-
tion to delay or hinder the complainant,,
or other creditors, in the collection of
their debts. Brown v. Bates, 10 Ala.
432; Floyd v. Floyd, 77 Ala. 353; Alden
v. Gibson, 63 N. H. 12.
Fraud. Under the Alabama act of
1844, the bill need not allege a fraud on
the part of the defendant. Brown v.
Bates, 10 Ala. 432. And so under Ala.
Civ. Code (1886), 3540. Floyd v.
Floyd, 77 Ala. 353.
The Prayer. As to what relief can
be granted under the general prayer for
other and further relief, see the title
BILLS IN EQUITY, vol. 3, p. 417; 5 Encycl.
of PI. and Pr. 568.
For statutes relating to creditors' suits
see as follows:
Alabama. Civ. Code (1886),
3540-3548; Acts (1888-9), P- 9. No. 114.
Arkansas. Sand. & H. Dig. (1894),
3 3129-3134.
Colorado. Mills' Anno. Code (1896),
251.
Georgia. 2 Code (1895), 2716-
2722.
Illinois. Starr &. C. Anno. Stat.
(1896), p. 593, par. 49.
Iowa. Code (1897), 4087-4090.
Kentucky. Bullitt's Civ. Code (1895),
430.
Maine. Rev. Stat. (1882), c. 46, 52.
Massachusetts. Pub. Stat. (1882), c.
151, 2, cl. n; c. 106, 64; Pub. Stat.
(Supp. 1888), p. 124, c. 223; p. 214, c.
285.
Michigan. How. Anno. Stat. (1882),
6614-6618.
New Hampshire. Pub. Stat. (1891),
c. 205, 7.
Ohio. Bates' Anno. Stat. (1897),
54 6 4-
Wisconsin. Sanb. & B. Anno. Stat.
(1889), 3029 et seq.
The Illinois statute is adopted from
the former New York statute and the
construction of the latter is followed.
Singer, etc., Stone Co. v. Wheeler, 6
111. App. 225.
Although the Alabama code uses the
word "discovery" in all the sections
relating to creditors' bills, yet it is not
necessary that the bill shall ask a dis-
covery, or conform to the requisites of
a bill for discovery. Zelnicker v.
Brigham, 74 Ala. 598.
To Subject Property Not Reachable by
Execution Generally. The bill must
allege that the debtor has assets or
property which cannot be reached by
execution, or which are covered up or
kept out of the reach of creditors.
Preston v. Colby, 117 111. 477. See also
Crabb v. Hill, (Ky. 1895) 30 S. W.
Rep. 415.
Allegations as to Debtor' s Distributive
Share. Where it is sought to reach an
interest of the debtor in the estate of
his deceased father before a settlement
of the administrator's account and an
order of distribution, the bill should
aver the value of the estate of the de-
ceased over and above the amount of
his debts, general expenses and ex-
penses of administration, so that it may
appear that the debtor has an interest
in the assets in the hands of the ad-
ministrator. Ginn v. Brown, 14 R. I.
524-
Indebtedness at Time of Fraudulent
Concealment. Where the bill proceeds
upon the theory that a sale made by
the judgment creditor created an in-
877
Volume 5,
6639. CREDITORS' SUITS. 6639.
Form No. 6639.'
State of Illinois, ) Circuit Court of Cook County, February Term,
Cook County. f A. D. iS98.
To the Judges of said Court, in Chancery Sitting.
Your orator, John Doe, of Chicago, in the county of Cook and state
of Illinois, respectfully represents unto your honors that at the Novem-
ber term, A. D. i897, of the Circuit Court of said Cook county, to wit,
on the eighteenth day of November, i&97, the same being one of the
regular days of said term, your orator recovered a judgment
against Richard Roe, one of the defendants hereinafter named, for
the sum of five thousand six hundred dollars and twenty-eight cents,
for the damages which he had sustained and the costs of suit, and
charges of your orator by him about his suit in that behalf expended,
which were adjudged to your orator in and by the said court, whereof
the said Richard Roe was convicted, as by the record of the said
judgment in the office of the clerk of said court, reference being
thereto had, and to which, for greater certainty, your orator prays
leave to refer, will more fully and at large appear.
And your orator further represents unto your honor, that the said
judgment so recovered in manner aforesaid, remaining in full force
and effect, and the costs, charges of suit, and damages aforesaid
unpaid and unsatisfied, your orator on or about the twentieth day of
November, in the year of our Lord one thousand eight hundred and
ninety-seven, for the purpose of obtaining satisfaction of the said judg-
ment, sued and prosecuted out of the said court a writ of fieri facias,
directed to the sheriff of Cook county, that being the county in which
said defendant resided at the time of the issuing of said writ, by which
said writ the said sheriff was commanded, that of the goods, chattels,
lands and tenements of the defendant Richard Roe, in his county, he
cause to be made the sum oifive thousand six hundred dollars and twenty-
fight cents, which your orator in said Circuit Court recovered against
the said defendant Richard Roe, and that he should have the money
at the clerk's office of the said court, at Chicago, in said county, in
ninety days from the date thereof, to satisfy the judgment so recov-
ered by your orator as aforesaid, and that he should have then and
there that writ.
And your orator further shows that the said writ of fieri facias,
before the delivery thereof to the said sheriff, was duly indorsed, and
was afterward, to wit, on or about the twenty-first day of November,
in the year of our Lord one thousand eight hundred and ninety-seven,
delivered to the said sheriff to be executed in due form of law.
And your orator further shows that the said sheriff of said county
aforesaid, on the eighteenth day of February, in the year of our Lord
one thousand eight hundred and ninety-eight, returned on the said writ
to him, in that behalf directed and delivered as aforesaid, that after
debtedness to him which was fraudu- immaterial that the bill fails to state
itly covered up and concealed, which that the complainants were creditors
really belonged to the judgment debtor when the sale took place. Beimel v.
i which constituted assets which Brown, 136 111. 586.
were in equity liable for the payment 1. Consult note I, p. 874, supra.
the complainant's judgment, it is
878 Volume 5.
6639. CREDITORS' SUITS. 6639.
due search he had been unable to find within said county of Cook any
goods, chattels, lands or tenements of the said Richard Roe whereof
the amount of said judgment and execution or any part thereof
could be made, as by the said writ of fieri facias, and the directions,
and the return of the said sheriff indorsed thereon, as aforesaid, now
on file in the office of the clerk of the said court, will more fully
appear, and to which, or to a copy thereof, your orator prays leave
to refer.
And your orator further shows that the said judgment still remains
in full force and effect, not reversed, or satisfied, or otherwise
vacated; and that the said Richard Roe has not paid the same to
your orator, but has hitherto wholly neglected and refused so to do.
And your orator further shows that there is now actually and
equitably due to your orator, upon the aforesaid judgment, the sum
of five thousand six hundred dollars and twenty -eight cents, together
with interest thereon from the eighteenth day of November, in the year
of our Lord one thousand eight hundred and ninety-seven, over and
above all claims of said defendant, by way of set-off, or otherwise.
And your orator further shows unto your honors that on or about
the first day of November and before that time, in the year of our
Lord one thousand eight hundred and ninety-seven, the said defend-
ant Richard Roe was engaged in a mercantile business at the Produce
Exchange Building in the city of Chicago, and that your orator is
informed and believes that in the course of the said mercantile busi-
ness of the said defendant Richard Rot, divers persons became
indebted to him to a large amount, and that the said defendant last
named, at the time of filing this your orator's bill of complaint, has
debts due to him and for which he holds divers securities and evi-
dences to a large amount, and has divers goods, wares and merchan-
dise, and other articles of personal property which belong to him, or
in which he in some way or manner is beneficially interested; and
that he has equitable interests and things in action of some nature or
kind, which might and ought to be applied to the payment of your
orator's said judgment against him the said defendant Richard Roe.
And your orator also charges that the said defendant Richard Roe
is owner of or in some way or manner beneficially interested in some
real estate, in this or some other state; or some chattels real of some
name or kind; or some contract or agreement relating to real estate;
or the rents, issues and profits of some real estate; and also that the
said defendant Richard Roe is owner of or in some way beneficially
interested in the stock of some company, incorporated or unincor-
porated, or in the profits of some company, or copartnership; and
also that he has in his possession, at the time of the filing of this your
orator's bill of complaint, some money in coin or bank bills; or that
he has money deposited in some bank or elsewhere, to his credit; or
that he has money, or securities for the payment of money, held by
some other person, in trust or otherwise, for his benefit.
And if the said defendant Richard Roe has made any sale, assign-
ment or transfer of his property or effects, or any part thereof, your
orator expressly charges that he believes such sale, assignment or
transfer is merely colorable, and made with a view of protecting the
879 Volume 5.
6639. CREDITORS' SUITS. 6639.
property or effects of said defendant Richard Roe so assigned, and
placing the same beyond the reach of your orator's said judgment,
and enabling the said defend ant Richard Roe to control and enjoy the
same, and the avails thereof, or to hinder or delay your orator in the
collection of his debt now in judgment as aforesaid; and that so it
would appear, if the said defendant Richard Roe would state and set
forth when and to whom such sale, transfer or assignment was made,
and what was the amount in value of the property or effects so
sold, assigned or transferred, and what were the terms upon which
said sale, transfer or assignment was made, and what disposition has
been made of the property or effects so sold, assigned or transferred,
and in whose possession the same now is, or what has been done with
the avails thereof. And your orator claims a full and complete dis-
covery of all such property, effects and things in action, belonging to
the said defendant Richard Roe and of all trusts whereby any prop-
erty, debts or effects are held for the use or benefit of the said
defendant last named, and of every sale, assignment or transfer
which the said defendant last named has made of his property, debts
or other effects, and of the person or persons to whom such sale,
assignment or transfer has been made; the amount and value of the
property, debts or other effects so sold, assigned or transferred; and
the trusts and other conditions upon which such sale, assignment or
transfer was made, and all the facts and circumstances relating
thereto; and particularly what is the situation of the property,
debts or other effects sold, assigned or transferred, at the time of
filing this your orator's bill of complaint.
And your orator further shows unto your honors, that he has reason
to believe, and does believe, that the said defendant last named has
property and other equitable interests, things in action or effects, of
the value of more than ten thousand dollars, exclusive of all prior first
claims thereon, and which your orator has been unable to reach by
execution on said judgment, against the said defendant last named;
and that this your orator's bill of complaint is not exhibited by
collusion with the said defendant or with any other person, or for the
purpose of protecting the property or effects of said defendant
Richard Roe against the claims of other creditors, but for the sole
purpose of compelling payment and satisfaction of the judgment so
as aforesaid recovered by your orator against the defendant Richard
Roe.
And your orator well hoped that the said defendant Richard
Roe would have paid to your orator the amount due him on said
judgment, or would have applied for that purpose any property,
money, debts, or other equitable interest or things in action belong-
ing to him, or in which he is in any way interested, as in equity and
good conscience he ought to have done.
But now, so it is, may it please your honors, that the said defend-
ant, combining and confederating together with divers other per-
sons, to your orator unknown, but whose names, when discovered, he
prays may be inserted herein, with proper and apt words to charge
them, and contriving how to injure and defraud your orator in the
premises, neglects and refuses to pay the amount so due to your ora-
880 Volume 5.
6639. CREDITORS' SUITS. 6639.
tor on his said judgment, or to apply for that purpose any property,
money, debts, or other equitable interest, or things in action belong-
ing to the said defendant Richard Roe, and for reason thereof
the said defendant sets up a variety of unfounded pretenses; all of
which actings, doings, neglects and pretenses are contrary to equity
and good conscience, and tend to the manifest wrong and injury of
your orator in the premises.
In tender consideration whereof, and forasmuch as your orator is
remediless in the premises, by the strict rules of the common law,
and cannot have adequate relief, save in a court of equity, where
matters of this and a similar nature are properly cognizable and
relievable.
To the end, therefore, that the said defendant may, if he can,
show why your orator should not have the relief hereby prayed, and
may, upon his corporal oath, and according to the best and utmost
of his knowledge, remembrance, information and belief, full, true,
direct and perfect answer make to all and singular the matters and
things hereinbefore stated and charged, and particularly to such of
the several interrogatories hereinafter numbered and set forth, as by
the note hereunder written he is required to answer:
That is to say, the said defendant may fully set forth and discover,
according to the best of his knowledge, remembrance, information
and belief, the nature and situation, amount and value of all the
property, interest and effects of the said defendant Richard Roe,
including all things in action of whatever nature or kind, with all the
particulars relating thereto, and that he may answer and state whether,
at the time of filing this your orator's bill of complaint, he, the said
defendant had not debts due to him to a considerable amount; and
if so that he may state particularly the amount of such debts re-
spectively, and from whom the same are due, and what security is
held therefor; and also that he may state which and what amount
of said debts are good and collectible, and what amount are bad or
doubtful; and whether at the time of filing this your orator's bill of
complaint he has not some property, real or personal, in law or
equity, belonging to him, or held in trust for him, or in which he
has some beneficial interest of some kind or description, and if so
that he may state and set forth a full, true and particular account
thereof, and the nature and value of his interest therein; and that
he may also state whether he has not money of some kind in his
possession or under his control, or deposited to his credit, or for his
use, or in some way or manner held for his use and benefit; and if so,
that he may state and set forth particularly the amount thereof, and
how and by whom the same is held; and that he may also state
whether he has any other equitable interest or thing in action, or
other means belonging to him, or in which he is in any way inter-
ested, whereby he could pay any part of the amount so as aforesaid
due to your orator upon said judgment against him, to your orator.
And if the said defendant has made any sale, assignment or transfer
of his property and effects, or any part thereof, that then the said
defendant may state and set forth generally, but not in items, what
property or effects have been so sold, assigned or transferred, and
5 E. of F. P. 56. 881 Volume 5.
6639. CREDITORS' SUITS. 6639.
the value thereof, and particularly when and to whom, and for what
purpose, and upon what terms and conditions, such sale, assignment
or transfer was made, and what has been done under such sale,
assignment or transfer, and what has been done with the property or
effects so sold, assigned or transferred, and the avails thereof. And
that the said defendant may specially state or set forth whether he
has sold, assigned, transferred, or in any other manner disposed of
the whole or any part of a lot of twenty-five one thousand dollar unreg-
istered four per cent, bonds of the United States, whose further
description is to your orator unknown, which were purchased by
said defendant from Richard Fen, of Chicago aforesaid, on the twelfth
day of September, in the year of our Lord one thousand eight hun-
dred and ninety-seven; and if so, to whom he has sold, assigned,
transferred, or otherwise disposed of said bonds, and for what pur-
pose, and for what price, consideration or other thing, and what
were the avails of such sale, assignment, transfer or disposal, both in
amount and nature, and whether the avails aforesaid, if any, have
been secreted or in any manner transferred or disposed of, and if so,
how, and to whom, and for what purpose, and upon what considera-
tion. And that the said defendant may be decreed to pay your
orator the amount so as aforesaid due to him for principal and
interest on his said judgment, together with your orator's costs and
charges in this behalf sustained; and may be decreed to apply
for that purpose any money or property, real or personal, in law or
equity, debts, choses in action or equitable interests belonging to
said defendant Richard Roe, or held iri trust for him, or in which
he in any way or manner is beneficially interested; and that the said
defendant may be enjoined and restrained from selling, assigning,
transferring, delivering, negotiating, discharging, receiving, collect-
ing, incumbering, or in any way or manner disposing of, or inter-
meddling with any debts or demands due to him, or any bills, bonds,
notes, drafts, checks, book accounts, mortgages, judgments, or other
debts due to him, whether in his possession, or held by some other
person in trust for him or to his use or benefit; and also from sell-
ing, assigning, transferring, or in any manner incumbering or dis-
posing of, or intermeddling with any money in coin, bank bills, drafts
or checks belonging to him, whether in his possession, or held by
any person in trust 'for his use or benefit, or any stock or interest
in any private or incorporated company, or any property, real or
personal, things in action, or chattels real held by him, or by any
other person for him, or in which he has any interest whatever,
except when such trust has been created by, or the fund so held in
trust has proceeded from, some person other than the said defendant
Richard Roe.
And that the said defendant may also be in like manner prohibited
from making any assignment of his property, and from confessing
any judgment for the purpose of giving preference to any other
creditor over your orator, and from doing any other act to enable
other creditors to obtain his property. And that a receiver may be
appointed, according to the course of practice in this court, and with
the usual powers of receivers in like cases, of all the property, equi-
882 Volume 5.
6640. CREDITORS' SUITS, 6640.
table interests, things in action and effects of the said defendant
Richard Roe.
And that your orator may have such further or such other relief
in the premises as the nature of his case shall require, and as shall
be agreeable to equity and good conscience.
May it please your honors to grant unto your orattfr the people's
writ of injunction, issuing out of and under the seal of this honorable
court, to be directed to the said defendant Richard Roe, and to his
counselors, attorneys, solicitors, trustees and agents, therein and
thereby commanding and strictly enjoining the said defendant and
the persons before mentioned, in manner aforesaid.
And may it please your honors to grant unto your orator the peo-
ple's writ of summons, issuing out of and under the seal of this hon
orable court, to be directed to the said defendant Richard Roe,
therein and thereby commanding him on a certain day and under
a certain penalty, to be therein inserted, that he personally be and
appear before this honorable court, on the first day of the next
regular term thereof, to be held at the court-house, in the county of
Cook aforesaid, the secondly of March next, then and there to answer
all and singular the premises, and to stand to and abide by and per-
form such order and decree therein as to your honors shall seem
agreeable to equity and good conscience.
And your orator will ever pray, etc.
John Doe,
Mason 6 Webster, Complainant's Solicitors.
State of Illinois, \
Cook County. J ss '
On this twenty-first day of February, one thousand eight hundred
and ninety-eight, personally came before me John Doe, who, being duly
sworn, saith that he is the complainant and your orator in the above
bill of complaint; that he has read the foregoing bill of complaint,
and knows the contents thereof, and that the same is true of his own
knowledge, except as to the matters and things therein stated to be
upon information and belief, and as to these matters he believes it to
be true.
John Doe.
Subscribed and sworn to before me this twenty-first day of Feb-
ruary, A. D. i898. Abraham Kent, J. P.
2. Dower Interest Not Set Off.
Form No. 6640.'
To the Hon. the Justices of the Superior Court within and for the
County of Worcester. Sitting in Equity.
1. This form is copied from the record 13, may maintain a bill in equity under
in the case of McMahon v. Gray, 150 Mass. Pub. Stat. (1882), c. 151, 2, cl.
Mass. 289, in which case it was held n, as amended by Stat. (1884), c. 284,
that the creditor of a widow who is en- to reach and apply in payment of his
titled to dower which has not been as- debt her right to have her dower as-
signed to her, and who is in occupation signed to her out of such lands. See
of the lands of her deceased husband, also supra, note I, p. 874.
under Mass. Pub. Stat. (1882), c. 124,
883 , Volume 5.
664,1. CREDITORS' SUITS, 6641.
Between
Michael F. McMahon and John Burns, plaintiffs,
and
Catherine Gray, defendant.
All of the City and County of Worcester.
1. And the plaintiffs say that the defendant and John F. Gray
made a promissory note, a copy of which is hereto annexed marked
A, payable to the order of the plaintiffs. And the defendant owes
the plaintiffs the amount of said note and interest thereon.
2. Said Catherine Gray is the wife of said John F. Gray, and, before
her marriage with said John F., was the widow of one Timothy D.
Leahy, late of said Worcester, deceased; that said Leahy died seised in
fee of the following described real estate situated in said Worcester.
(Here followed a description of the land. ) x
3. Said Timothy D. Leahy died intestate, leaving this defendant,
Catherine Gray, as his widow.
Said Catherine was at the time of the death of said Leahy, and now
is, entitled to dower in said real estate, and to have the same assigned
to her, but the same has never been assigned to her, and no petition
has ever been filed by any person entitled so to petition to have said
dower interest of said Catherine assigned to her, and said Catherine
has been ever since her said husband Leahy's death, and is now, in
occupation of said estate.
4. The said dower interest of said defendant Catherine cannot be
come at to be attached or taken on execution.
Wherefore said plaintiffs pray that said interest and right of said
defendant Catherine to have dower assigned to her out of said real
estate may be applied in payment of said plaintiffs' debt, and that a
receiver may be appointed with authority to petition in said defend-
ant Catherine 's name to have said dower assigned and to receive the
rents and profits thereof, and for other and further relief, and that
she may be enjoined from conveying or disposing of her said right
and interest, and that a subpoena may be issued to her to appear and
answer hereto. By their Attorneys,
Verry & Gaskill.
3. Judgment Standing- in Favor of Debtor.
Form No. 6641.*
To the Honorable the Justices of the Supreme Judicial Court, sitting
in Equity for the County of Worcester,
Complains Welcome A. Thayer of Blackstone, in said county, against
1. The land was described as follows, erly by land now or late of John P. Pond
78 feet, more or less; easterly by land
"A certain tract of land situated on of Mason If. Morse 41 feet; northerly
Ward street in said Worcester, being by land now or formerly of said Arro-
the southerly part of the parcel con- quier 61 feet, more or less, and the same
veyed to T. Arroquier by Mason H. conveyed to Leahy by said Arroquier by
?rsf, by deed dated .March j, 1869, deed dated April 12. 1869, recorded with
and bounded and described as follows, the Worcester County Deeds, Book 787,
Page 432."
'Utterly by Ward street j* feet; south- 2. This form is copied from the rec-
884 Volume 5.
6641. CREDITORS' SUITS. 6641.
John M. Daniels of Mendon, in said county, and Mahlon M. Daniels of
Blackstone, in said county, and shows that by the consideration of our
justices of the Superior Court, holden at Worcester on the tenth day of
December, A. D. i87, he recovered judgment against the said John M.
Daniels for the sum of seven hundred and seven and ^thirty-seven one-
huneiredths dollars debt or damage and one hundred and three and
twelve one-hundredths dollars costs of suit, which judgment has been
satisfied in part only, to wit, in the sum of one hundred and eighteen and
forty-eight one-hundredths dollars, and that he, the said plaintiff, is a
creditor of the said John M. Daniels in the sum of six hundred and
ninety-two and eleven one-hundredths dollars and interest from the date
of said judgment to the time of filing this bill.
And your orator further shows that said John M. Daniels has not
any property which can be come at to be attached or taken in execu-
tion for the payment of said judgment debt.
And your orator further shows that said Mahlon M. Daniels is in-
debted to the saidy0//# M. Daniels in the sum of about two hundred
dollars damage and costs of suit, to wit, in about the sum of eighty
dollars debt or damage and one hundred and twenty dollars costs of
suit, for which sums judgment has been rendered in our said Superior
Court, but no execution has been issued on said judgment, which
sums cannot be reached by your orator by the ordinary trustee
process or by any process of the common law.
And your orator further shows that said John M. Daniels is about
to take out execution on said judgment so recovered by him and to
collect the same of the said Mahlon M. Daniels for his own use, and
does not intend to apply the same to the payment of the plaintiff's
demand.
All of which actings and doings are contrary to equity and tend to
the manifest wrong and injury of your orator in the premises. In
consideration whereof, and forasmuch as your orator can only have
adequate relief in the premises in a court of equity, where matters
of this nature are properly cognizable and relievable.
Wherefore your orator prays that a writ of subpoena may issue re-
quiring said John M. Daniels to appear and answer hereto, but not
under oath, which is waived, and that said John M. Daniels, his
attorneys, agents, servants, etc., may be enjoined from taking out
execution on said judgment against said Mahlon M. Daniels, and from
collecting said judgment debt and cost for his own use; and that said
Mahlon M. Daniels may be enjoined from paying said judgment debt
and cost to the said John M. Daniels, or to any other person except
on the order of this court, and may be decreed to pay said judgment
debt and cost to the plaintiff in part satisfaction of the balance due
the plaintiff as aforesaid from the said John M. Daniels, and that your
ord in the case of Thayer v. Daniels, attorney at law, had also a lien upon it
113 Mass. 129, in which case, however, for fees and disbursements for prose-
the bill was dismissed, as the master to cutingthe suit in which it was obtained
whom the case was referred found that to final judgment. For the present
the judgment had been assigned for form of a bill in equity in Massachusetts
valuable consideration before the filing see vol. 4, Form No. 4273.
of the bill, and that one Burgess, an See also supra, note i, 874.
885 Volume 5.
6642. CREDITORS' SUITS. 6642.
orator may have such other and further relief as to your honors shall
seem meet.
Welcome A. Thayer.
Worcester, ss. Feb. 18, i873.
Then personally appeared Welcome A. Thayer and made oath that
the allegations aforesaid are true to the best of his knowledge and
belief. Before me,
T. G.Kent,}. P.
T. G. Kent, Complainant's Solicitor.
4. Patent-right.
Form No. 6642.'
Commonwealth of Massachusetts.
Suffolk, ss. In Equity.
John C. Wilson )
v. \
Martin- Wilson Automatic Fire Alarm Co. )
To the Honorable the Justices of the Superior Court within and for
the County of Suffolk.
The complainant shows unto your honors that the respondent
company owes him one thousand dollars for services as treasurer and
electrician for the year 1886, and the respondent has admitted the
complainant's claim, and has often promised to pay the same. And
the complainant has made diligent search but has been unable to dis-
cover any goods or estate of the respondent which can be come at
to be attached to secure the complainant's claim, all the goods and
chattels of the respondent in this commonwealth having been attached
for more than their value, to secure claims of other creditors of the
respondent. But the respondent is the owner of certain letters
patent of the United States for fire alarm apparatus, numbered as
follows, viz., 156,560; 266,706; 272,828; 329,468; 329,469; 329,470;
341,114; 341,115; 342,114; 360,968; and certain inventions or
improvements in such apparatus made by Morris Martin, and by him
assigned to the respondent, he having made application for letters
patent of the United States therefor.
The complainant further shows unto your honors that the respond-
ent has, by vote, authorized the sale of said patent and patent-rights,
and that its officers are about to sell the same at public auction in
said Boston.
All which actings, doings, refusals and pretenses are contrary to
equity and good conscience, and tend to the manifest wrong and
injury of your orator in the premises.
In consideration whereof, and forasmuch as your orator is reme-
diless at and by the strict rules of the common law, and cannot have
1. This form is copied from the patent by a master might be ordered,
record in the case of Wilson -v. Martin- under Mass. Stat. (1884), c. 285, I, to
Vilson Automatic Fire Alarm Co., 151 satisfy the debt. See also supra, note
Mass. 515, in which case it was held i, p. 874.
that a sale and conveyance of letters
886 Volume 5.
6643. CREDITORS' SUITS. 6643.
adequate relief save in a court of equity, where matters of this and
like nature are properly cognizable and relievable.
To the end, therefore,. that the said defendant may, if it can, "show
why your orator should not have the relief hereby prayed, and may,
according to the best and utmost of its knowledge, remembrance,
information and belief, full, true, direct and perfect answer make to
all and singular the matters aforesaid, but not upon oath or affirma-
tion, the benefit whereof is expressly waived by your orator.
Your orator prays as follows: that his said claim may be estab-
lished, and that a receiver may be appointed to take possession of
said letters patent and patent-rights, and to sell the same and apply
the proceeds to the satisfaction of your orator's claim.
May it please your honors to grant unto your orator, not only a
writ of injunction issuing out of and under the seal of this honorable
court, to be directed unto the said Martin- Wilson Automatic Fire Alarm
Company, its officers, agents and servants, to restrain it and them,
and each of them, from selling or interfering in any manner with let-
ters patent of the United States numbered 156,560; 266,706; 272,-
893; 329,468; 329,469; 329,470; 341,114; 341,115; 342,114; 360,968;
and inventions and patent-rights assigned to the respondent by Mor-
ris Martin, but also a writ or writs of subpoena, to be directed to the
said Martin- Wilson Automatic Fire Alarm Company, thereby command-
ing it at a day certain, and under a certain penalty therein to be limited,
personally to be and appear before this honorable court, and then
and there full, true, direct and perfect answers make to all and
singular the premises, and further to stand to, perform and abide
such further order, direction and decree therein as to this honorable
court shall seem meet.
John C. Wilson.
Frank T. Benner, Solicitor.
{Verification as in Form No. 6641.)
5. Property in Name of Another where Purchase Money
was Furnished by Debtor. 1
Form No. 6643.*
To the Supreme Judicial Court. In Equity.
Hiram W. Berry, of Casco, in the county of Oxford and state of
Maine, administrator of the estate of John Berry, late of said Casco,
deceased, complains against Albion K. P. Berry and Lizzie T. Berry,
his wife, both of Casco in said county and state, and says:
i. That at the September term, A. D. i875, of this court, to wit, on
the eighteenth day of September, A. D. i8#7, the same being one of the
1. For the substance of a bill to reach the case of Berry v. Berry, 84 Me. 541,
promissory notes belonging to the in which case a decree in favor of the
debtor, an insurance company, but held plaintiff, rendered by the single justice
by another who is its agent, tee Sillo- who heard the cause in the court be-
way v. Columbia Ins. Co., 8 Gray low, was affirmed on appeal. See also
(Mass.) 199. supra, note I, p. 874.
2. This bill is based upon the facts in
887 Volume 5.
6643. CREDITORS' SUITS. 6643.
regular days of said term, the said John Berry recovered a judgment
against the said defendant, Albion K. P. Berry, for the sum of six
hundred and nine dollars and twelve cents for the damages which he
had sustained and the costs of suit and charges of plaintiff by him
about his suit in that behalf expended, as by the record of the said
judgment in the office of the clerk of said court, reference being
thereto had, and to which for greater certainty plaintiff prays leave
to refer, will more fully and at large appear.
2. That the said judgment recovered in manner aforesaid remain-
ing in full force and effect, and the costs, charges of suit and damages
aforesaid unpaid and unsatisfied, plaintiff, on the twentieth day of
September, A. D. i87, for the purpose of obtaining satisfaction of said
judgment, sued and procured out of said court a writ of fieri facias
directed to the sheriff of said county of Oxford, by which said writ
said sheriff was commanded that of the goods, chattels, lands and
tenements of the defendant, Albion K. P. Berry, in his county, he
cause to be made the sum of six hundred and nine dollars and twelve
cents, which plaintiff in said court recovered against said defendant,
Albion K. P. Berry, and that he should have the money at the clerk's
office of said court at Casco, in said county, in thirty days from the
date thereof, to satisfy the judgment so recovered by plaintiff as
aforesaid, and that he should have then and there that writ.
3. That said writ of fieri facias was afterward, to wit, on the
twenty-first day of September, A. D. i87<5, delivered to said sheriff to
be executed in due form of law, and that said sheriff, on the twenty-
first day of October, A. D. i875, returned said writ to him in that
behalf directed and delivered as aforesaid, that after due search he
had been unable to find within said county of Oxford any goods,
chattels, lands or tenements of the said Albion K. P. Berry whereof
the said judgment and execution, or any part thereof, could be made,
as by the said writ of fieri facias, and the return of the said sheriff
indorsed thereon, as aforesaid, now on file in the office of the clerk
of said court, reference being thereto had, and to which for greater
certainty plaintiff prays leave to refer, will more fully and at large
appear.
4. That afterward, to wit, on the third day of January, A. D. i880,
the said John Berry died intestate, and that at a term of the Probate
Court held at Casco, within and for said county of Oxford, on the
second Monday of February, A. D. i&80, the said Hiram W. Berry was
duly and legally appointed administrator upon the goods and estate
of the said John Berry, and thereupon accepted said trust and quali-
fied by giving bond, as the law directs.
5. That said judgment so recovered by said John Berry as afore-
said still remains in full force and effect, not reversed or satisfied, or
otherwise vacated, and that the said defendant, Albion K. P. Berry,
has not paid same to the said John- Berry, nor to plaintiff as admin-
istrator of the goods and estate of the said John Berry, but has
hitherto wholly neglected and refused so to do.
6. That on the third fay of May, A. D. i&88, the said Albion K. P.
Berry contracted for and purchased a farm of John J. Holman of
Dixfield in the county of Oxford, to wit: The farm on which the
888 Volume 5.
6644. CREDITORS' SUITS. 6644.
said Albion K. P. Berry now resides with his family (desc -ibing farm),
for the consideration of twelve hundred dollars, and then and there
paid the said John J. Hohnan the sum of nine hundred dollars for the
same farm with his own money, or caused and furnished the money
to be so paid, and then and there caused the said real estate to be
conveyed by said John J. Holman to said Lizzie T. Besry, who then
was, ever since has been, and now is the lawful wife of said Albion
K. P. Berry, with intent to cheat and defraud the said plaintiff in
his said capacity of his said debt or judgment, and she, the said Lizzie
T. Berry, well knowing the premises, but intending to aid her said
husband in so cheating and defrauding the plaintiff, and then having
no property of her own, gave her promissory note to said John J.
Holman for the sum of three hundred dollars, and a mortgage of said
real estate to secure the same, as the balance of the consideration of
said purchase.
7. That on the tenth day of September, A. D. iS83, a second writ of
execution was issued on said judgment, which was put into the hands
of Oscar F. Trask, an officer duly qualified to serve the same, who
afterward returned the same unto said court in no part satisfied,
with his indorsement thereon that he was unable to find any goods
or estate of the said debtor in his precinct wherewith to satisfy the
same.
And whereas your petitioner has no remedy at law by which he
can obtain the interest of said Albion K. P. Berry in said real estate
to satisfy his judgment and execution, he prays that he may be heard
in equity, and that the court will decree a conveyance of so much of
said real estate as may be necessary for the payment of said execution
and judgment, in case it shall be ascertained that said mortgage is
paid, or decree that the right of redeeming the same real estate from
said mortgage may be levied upon and sold at auction. And your
orator prays for such other and further decrees as to the court may
seem just and proper in the premises.
Hiram W. Berry.
Jeremiah Mason,
Attorney of Complainant in Equity.
( Verification.^-
Form No. 6644.*
Norfolk, ss.
Timothy Bresnihan )
vs. > Supreme Judicial Court.
John Sheehan and Ellen Sheehan. )
Bill of Complaint.
To the Honorable the Justices of the Supreme Judicial Court, next to
be holden at Dedham, within and for the County of Norfolk, sit-
ting in Equity.
Respectfully represents to your honors Timothy Bresnihan of Wey-
mouth, in said county.
1. For the form of verification of a 2. This form is copied from the rec-
bill in equity in Maine see the title ord in the case of Bresnihan v. Shee-
BILLS IN EQUITY, Form No. 4271. han, 125 Mass, n, in which case it was
889 Volume 5.
6644. CREDITORS' SUITS. 6644.
First That one John Sheehan, of said Weymouth, is justly and
truly indebted to him in the sum of seven hundred and thirty dollars
for board furnished by him to said respondent and his minor son,
John Sheehan, Jr., according to the account hereto annexed,
marked A.
Second That, as your orator is informed and believes, said John
Sheehan, previous to the contracting of said indebtedness, was for a
long time constantly employed, and earned and received large sums
of money.
Third That while so employed and receiving regularly said
moneys, said John Sheehan deposited all his wages with his wife, Ellen
Sheehan, said other respondent, for safe keeping, after expending
such part thereof as was needed for the family temporary expendi-
tures; and in justice and equity to be applied to the payment of his
indebtedness.
Fourth That from said surplus, from time to time deposited in
the Savings Bank by the said Ellen without the knowledge of her said
husband, in her own name, a large sum, to wit: a thousand dollars,
accumulated, which, without the knowledge or assent of the said John
Sheehan, she used in the purchase of a certain piece of real estate,
using these said funds to make part payment therefor, and in part
other moneys borrowed by her on her sole credit, the same described
in the deed hereto annexed, marked B, the record title of which the
said Ellen took and held in her own name, and still holds.
Fifth That as your orator is informed and believes, said John
Sheehan has no other property than that so deposited with said Ellen,
and after full and diligent inquiry, they aver that he has none that
can be come at to be attached, or taken on execution in a suit at law,
against said debtor.
Wherefore, inasmuch as your orator is ignorant whether the said
Ellen still retains in her hands said moneys so deposited with her by
said John Sheehan, and if so, in what form, or has used it for the
purchase of said real estate, which as above averred upon informa-
tion, your orator believes to be true; and if correctly informed, as
he is advised that said estate was not purchased, or directly or indi-
rectly paid by said debtor, having the record title conveyed to said
Ellen, with intent to defeat, delay or defraud your orator or any
other creditor, or on a trust for him, said debtor, express or implied,
whereby he is entitled to a present conveyance from said Ellen.
And is also advised that he can only reach said debtor's property,
and rights of property before referred to, by the aid of a court of
equity, wherein matters of this nature are cognizable under and by
virtue of chapter 113, 2, Gen. Stat.
To the end, therefore, that said defendants may full, true, direct
held ^that if a wife, without her hus- in the land, to reach and apply which,
band's knowledge or assent, deposits in payment of his debt, a creditor of
his wages, placed in her hands for safe the husband may, under Gen. Stat.
keeping, in a savings bank, and uses (1860), c. 113, 2, c. n, maintain a bill in
the deposit with money of her own in equity against him and his wife. For
the purchase of land, the title to which the present form of the bill in Massa-
she takes and holds in her own name, chusetts see vol. 4, Form No. 4273.
the husband has an equitable interest See also supra, note I, p. 874.
890 Volume 5.
6645. CREDITORS' SUITS. 6645.
and perfect answer make to all and singular the charges and matters
aforesaid, and more especially that they may discover and set forth
whether the said John Sheehan did not deposit, from time to time, all
his earnings and moneys with said Ellen Sheehan, as hereinbefore
averred, and if so, to what amount; and will also discover and set
forth whether the said Ellen now holds said funds as deposited, or
what use or disposal was made of the same; also whether said parcel
of real estate was not purchased as alleged, and is not now so held by
said Ellen, answer under oath being hereby waived. And to the end
that the property of said John Sheehan in the hands of said Ellen Shee-
han, or so much thereof as is necessary, may be applied to the pay-
ment of the debt that your complainant proves due him from said
John Sheehan\ and that for this purpose the said respondent, Ellen
Sheehan, may be required to transfer, assign, convey, and deliver up
to some suitable person to be appointed by this honorable court to
receive and sell the same, or so much of the estate and property of the
said John Sheehan in her possession, as may suffice to satisfy the
adjudged debt of your orator, and the costs of this suit.
And till such payment or satisfaction, that the said Ellen Sheehan
may be enjoined from paying out, transferring, conveying or passing
away any of the property of the said John Sheehan in her hands, or
the property alleged to be purchased therewith, except in liquidation
of your orator's said debt.
May it please your honors to grant unto your orator, not only the
writ of injunction restraining the said defendants as aforesaid, but
also a writ of subpoena, commanding the said defendants at a day cer-
tain to be and appear before this honorable court, and to stand to,
perform and abide such order, direction and decree as your honors
may make in the premises. Timothy Bresnihan.
By his Attorney W. E. Jewell.
6. Royalty Payable Under a Publisher's Contract,
Form No. 6645.'
Commonwealth of Massachusetts.
Supreme Judicial Court.
Suffolk, ss. In Equity.
George W. T. Lord et als.
vs.
Bret Harte et als.
Bill of Complaint.
George W. T. Lord, Samuel Lord, Jr., and Thomas Varleer, all of
the state, county and city of New York, and doing business in said
city as partners under the firm name of Lord 6 Taylor, bring this
1. This form is copied from the rec- agree to pay to the debtor a royalty
ord in Lord v. Harte, 118 Mass. 271, in upon the price of each book sold by
which case it was held that a creditor them, to account with him semi-
may maintain a bill in equity to reach annually, and to pay him the amounts
and apply, to the payment of the debt, then found to be due, if the amount
money due and afterward accruing to due at the time of filing the bill is not
the debtor, from a contract of the latter sufficient to satisfy the debt,
with book publishers, by which they See also supra, note i, p. 874.
891 Volume 5.
6645. CREDITORS' SUITS. 6645.
their bill against Bret Harte, of Morristown in the state of New
Jersey, and James R. Osgood, John S. Clark and Benjamin H. Ticknor,
all of Boston in said commonwealth, and doing business in said Boston
under the firm name of J. R. Osgood 6 Co., equitable trustees for
said Harte; and thereupon your orators complain and say,
First. That in the year A. D. i874, they brought suit for certain
causes of action against the said Harte, in the Superior Court of
said city of New York, and by the consideration of the justices of
said court recovered judgment against him for the sum of eleven htin-
dred fifty three and seventy-six one-hundredths dollars, all of which is
more fully shown in an exemplified copy of the judment roll of
said court, to which your orators crave leave to refer, and which they
will produce at the hearing in this cause.
Second. That said judgment remains wholly unpaid and unsatis-
fied at the filing of this bill, and that said Harte owes your orators
the amount thereof with interest.
Third. And your orators further say, that the said Harte is an
author of some reputation, and has written works in prose and poetry
which have been collected and published in several volumes, and
have a large and extended sale in the United States and elsewhere;
that among the works so published are the following; to wit,
(a) A volume of stories and sketches entitled " The Luck of Roar-
ing Camp" (b) A volume of similar characters entitled "Mrs.
Scaggs Husbands. " (c) A volume of stories entitled "Condensed
Novels." (d and e) Two volumes of poems, the copyrights whereof
under the laws of the United States are of value.
Fourth. And your orators further say, that the said works have
been published and sold, and are now being published and offered
for sale, in many different editions, by the defendants Osgood, Clark
and Ticknor.
Fifth. And your orators are informed and believe, and therefore
upon their said information and belief aver, that the sole right to
publish and sell said works belongs to the said Osgood, Clark and
Ticknor; that the copyrights thereof were taken in their name or
assigned to them by or with the consent of the said Harte, in con-
sideration of certain contracts between them, which contracts are
now in existence and are substantially as follows; to wit, that in con-
sideration of their becoming the owners of said copyrights the said
Osgood, Clark and Ticknor shall publish and sell copies of the said
works, as may be advantageous, during the continuance of said copy-
rights, and out of such sales shall pay to the said Harte the sum of
ten per centum upon the retail price of each book, by way of royalty
or compensation, for the authorship thereof; that in said contract it
is provided that an account shall be stated between said Osgood &
Co. and the said Harte twice each year; to wit, in the months of May
and November, and upon said statements the amounts found to be
due said Harte are then payable to him under the contracts.
Sixth. And your orators are further informed and believe, and
therefore upon their said information and belief aver, that since the
existence of said contracts the said Harte has received under them
each year, as royalty upon the sale of his works, a large sum of
892 Volume 5.
6645. CREDITORS' SUITS. 6645.
money, to wit, more than the amount of his debt to your orators;
that the sale of said works continues to be large, and that the inter-
t- t of the said Harte therein is likely to be valuable in the future.
Seventh. And your orators say that the interest of said Harte in
th contracts above mentioned cannot be come at to be attached or
taken on execution in a suit at law against said Harte.
And the plaintiffs further aver upon their information and belief,
that the amount of money due upon a proper accounting (if anything)
from Osgood or" Co. to said Bret Harte at the time of filing their bill,
or which shall have become due at the first accounting after the ser-
vice of the bill, will not be sufficient to pay the indebtedness of said
Harte to the plaintiffs.
To the end therefore that the defendants may, if they can, show
why your orators should not have the relief hereby prayed, and may,
waiving their several and respective oaths, full, true and perfect an-
swers make to all and singular the premises, and more particularly
that the said Osgood, Clark and Ticknor may full answer make to the
several interrogatories hereinafter numbered and set forth, to wit,
1. Whether they have published and offer for sale any of the
works of the defendant Harte, and if so, what of said works and
how many editions of the same they are now so offering ?
2. Whether they own the copyrights of said works, and if they do,
whether said copyrights were procured to be issued to them by said
Harte ?
3. Whether any contracts exist between them and said Harte, and
to annex a copy of the same to their answer to this bill.
4. Whether anything is now due from them to said Harte under
said contracts ?
5. Whether the accounts between them and said Harte are, by their
contracts, to be settled at any particular times, and if so, when.
And that the said Osgood, Clark and Ticknor may be ordered by
this honorable court to account with your orators for such sums of
money as may now be due or hereafter fall due said Harte under said
contracts, until his debt to your orators, with the interest thereon
and the costs of this proceeding, shall be fully paid and discharged ;
or that said Osgood, Clark and Ticknor may be ordered to pay the
same into court, subject to the order of this honorable court; and
that your orators may have such further and other relief in the prem-
ises as the nature of their case may require:
May it please your honors to grant unto your orators a writ of
subpoena, to be directed unto the said Bret Harte, James R. Osgood,
John S. Clark and Benjamin H. Ticknor, commanding them at a cer-
tain time, and under a certain penalty therein to be limited, person-
ally to appear before this honorable court, and then and there full,
true, direct and perfect answer to make to all and singular the prem-
ises; and further, to stand to, perform and abide such further order
and decree therein as to this honorable court shall seem meet.
G. IV. T. Lord,
S. Lord, Jr.,
Thomas Varlecr,
by their Solicitor,
M. M. Weston.
893 Volume 5.
6646. CREDITORS' SUITS. 6646.
7. Treasury Warrant.
Form No. 6646.'
Commonwealth of Massachusetts.
Superior Court.
Suffolk, ss. Bill in Equity.
William McCann
vs.
Simon F. Randall and Jerome F. Manning.
Your complainant William McCann of Portland, state of Maine,
shows unto your honors that Simon F. Randall, now of Brooklyn, state
of New York, on the eighteenth <\-&y of January, A. D. iS69, at Portland,
state of Maine, made his certain promissory note of that date whereby
he promised on demand after date to pay to the order of Wm. Mc-
Cann, ten hundred and forty-seven dollars for value received and duly
stamped said note, and delivered the same to your orator, the said
William McCann, whereby the said defendant became liable to pay
the same according to the tenor of said note, a copy whereof is here-
unto annexed: That the said defendant Randall has never paid the
same or any part thereof, but the same, together with interest amount-
ing to two thousand and fifty-three dollars and sixteen cents in all, is still
due and payable to your orator, which complainant is entitled to have
and recover from said defendant Randall; that said defendant Randall
has in this state certain property, rights, title or interest legal or
equitable which cannot be come at to be attached or taken on execu-
tion in a suit at law, against said debtor, to wit: a certain negotiable
draft numbered (B 14883) on Diplomatic Warrant No. 2232, signed by
Q. N. Wyman, payable to the order of said defendant Simon F. Randall
at the Assist. Treasury at Boston, Mass., for the sum of two thousand six
hundred and forty-six dollars and two cents, dated August 12, A. D.
1884, registered August 12, A. D. 1884, issued under authority of the
United States, and which your orator cannot more fully describe,
deposited and in the possession of Jerome F. Manning, doing business
at 131 Devonshire street in said Boston; that said defendant has
refused and still refuses to pay said claims or to apply said inattach-
able property thereto, all of which doings of said defendant Randall
are contrary to equity and good conscience, and tend to the manifest
injustice of your orator.
In consideration whereof and forasmuch as your complainant can
only have adequate relief in a court of equity, where matters of this
nature are properly cognizable and relievable, and to the end that
the said Jerome F. Manning and the said Simon F. Randall may
severally answer all and singular the premises, and that there may
be a decree that said Randall pay said sum as aforesaid, and that so
l.^This form is copied from the rec- found here unindorsed in the custody
ord in the case of McCann v. Randall, of an agent, may be reached by a cred-
147 Mass. 81, in which case it was held itor of the payee by a bill in equity
that a United States treasury draft, under Mass. Pub. Stat. (1882), c. 151,
which was issued upon the award of 2, cl. II.
theCourtof Commissioners of Alabama *" Consult note I, p. 874, supra.
Claims, payable to a nonresident and
894 Volume 5.
6647. CREDITORS' SUITS. 6647.
much of the proceeds of said draft as are necessary therefor may be
appropriated to the payment of said claims, and that on failure of
said Randall to indorse said draft the same may be indorsed by some
person appointed by this court therefor, and that said defendant
Manning may be enjoined from negotiating, delivering up, or parting
with the possession of said draft until the further order of this court,
and that your complainant may have such other and further relief as
the nature of this case may require and to your honors shall seem
meet, may it please your honors to grant unto your complainant
proper order of notice to be directed to said defendant Randall,
and a writ of subpoena to be directed to said Jerome F. Manning of
said Boston, commanding them and each of them on a certain day to
appear before your honors and answer the premises and abide such
order and decree as to your honors shall seem meet, and also a
temporary writ of injunction to be directed to the said Jerome F.
Manning restraining him from in any way negotiating or disposing
of said draft until the further order of his court.
his
William^ McCann.
mark
Witness to
William McCanris
Signature
Josiah H. Drummond, Jr.
State of Maine,
Cumberland, ss. February 2, i&85.
Then personally appeared the above named William McCann and
made oath that he has read or heard read the above bill in equity
and knows the contents thereof, and that the same is true except as
to those matters stated on information and belief, and that as to
those he believes them to be true.
Before me,
Josiah H. Drummond, Jr.,
Justice of the Peace.
8. Trust Property.
a. Devise in Trust.
Form No. 6647. 1
Bill in Equity.
In the Supreme Court of the District of Columbia, the twenty-third
day of October, iS96.
1. This form is based upon the facts that while the bill showed that the
in the case of Bryan v. May, 9 App. Cas. monthly revenues of the estate
(D. C. ) 383, in which case, however, amounted to twelve hundred dollars,
the bill was defective in omitting to two-thirds of which was for distribu-
join Sarah Maria May, the executrix of tion among the children of the testator,
the will, and co-trustee with defendant there was no prayer for special relief in
of the estate thereunder, as a party respect to this fund. *
defendant, and for the further reason Consult note I, p. 874, supra.
895 Volume 5.
6647. CREDITORS' SUITS. 6647,
Charles C. Bryan, plaintiff,
v.
William May, and William May and
> No. 593.
Sarah Maria May, as executors and
trustees under the will of John F.
May, deceased, defendants.
To the Supreme Court of the District of Columbia, holding an
Equity Court.
The plaintiff states as follows:
1. He is a citizen of Northport, in the state of New York, and
brings this suit in his own right,
2. The defendant William May is a citizen of the United States
and a resident of the District of Columbia, and is sued in this action
in his own right, and also as executor and trustee under the will of
John F. May, deceased.
The defendant Sarah Maria May is a citizen of the United States
and a resident of the District of Columbia, and is sued in this action
as executrix, and as co-trustee with said William May, under the
will of John F. May, deceased.
3. The plaintiff recovered a judgment against defendant William
May on the fifth day of June, \W5, in the Supreme Court of the Dis-
trict of Columbia, for the sum of three hundred and forty- five dollars
and sixty-five cents, with interest from the second day of November,
iW8, which judgment remains unpaid, and upon which execution
has been returned unsatisfied.
4. The defendant William May is an heir at law and devisee of
John F. May, who died in the said district the first of May, i891,
seised and possessed of a large amount of valuable real estate, situated
therein, and described as follows {describing if).
5. The said John F. May, at the time of his decease, as aforesaid,
left a last will and testament and codicil, which said will and testament
and codicil are hereto annexed and made a part of this bill and
marked Exhibit A; that on the fifth day of June, i&91, said last will
and testament and codicil of the said John F. May, deceased, were
duly proved before the Hon./i?// Marshall, a justice of the Supreme
Court of the District of Columbia, holding a special term of said court
for probate business, and duly admitted to probate by said justice.
A copy of said order of probate is hereto annexed and made a part
of this bill and marked Exhibit B.
6. By the said will the said John F. May {Here was set out the sub-
stance of the provisions of the will in question)*
1. By the said will the testator de- " intact and undivided, in the belief of
vised and bequeathed all of his estate its increase in value, and especially to
to his wife, Sarah Maria May, subject insure unto my wife and children a cer-
to the trusts subsequently provided, to tain income during their lives," he
hare and hold, to collect rents, revenues, directed " that no division of it shall be
etc. He then gives her, absolutely, made while any of my children are
one-third of his personal estate, and for living, and the rents, profits and issues
life one-third of all the rents and reve- of it, with the exception of the thirds
nues of his estate, together with the of my wife, shall be applied to the pay-
house and lot where he resided. Ex- ment of all just debts I may owe at the
pressing the wish to keep his estate time of my death, and especially to the
896 Volume 5.
6647. CREDITORS' SUITS. 6647.
7. The rents and revenues collected from said estate by defendant
William May amount to at least twelve hundred dollars per month.
8. By the terms of said will, defendant William May has vested in
him an equitable estate in fee subject to the trusts declared in said
will.
9. On the second fay of May, i895, defendant William May having
given a bond for costs in the Court of Appeals, on an appeal to the
Supreme Court of the United States, upon which the American Surety
Company became surety, induced one Victorine M. Learned to deposit
with said company twenty thousand dollars of bonds to secure it against
loss on said bond, and on the second of May, \W5, to save said Vic-
torine M. Learned harmless, defendant William May conveyed to her
his interest in the estate atoresaid.
10. Wherefore piaintiff prays that defendant William May be
decreed to pay and satisfy the amount due on said judgment and the
costs of this suit; and to apply for that purpose his interest or por-
tion of the rents, profits, and incomes accruing to him under the will
of said John F. May; and that should the aforesaid rents, profits and
incomes be found insufficient or unavailable to satisfy said judgment,
it may be decreed that all the right, title, and interest of said William
May in the real estate devised to Sarah Maria May and William May,
as trustees under the will of John F. May, or so much thereof as is
necessary, may be applied in satisfaction of said judgment; and that
for this purpose the said William May and his co-trustee, Sarah
Maria May, may be required to transfer, assign, convey, and deliver
up to some suitable person to be appointed by your honor to receive
and sell the same, subject to the trusts created under the will of said
John F. May, and subject further to the trust in favor of said Victorine
M. Learned, or so much of the estate and property of the said William
May as may suffice to satisfy the said judgment, and the costs of this
suit. And until such payment or satisfaction, that the said William
May, and his co-trustee, Sarah Maria May, may be enjoined from
paying out, transferring, conveying or passing away any of the prop-
erty of the said William May, except in satisfaction of said judgment.
11. And for process of subpoena directed to the said William May
canceling of any incumbrance or mort- from giving bond in either capacity,
gage that may then exist on any part By the codicil to the said will, the tes-
of my estate." When said debts shall tator appointed his son, the defendant
have been paid, said rents, etc., shall be William May, co-trustee with Sarah
equally divided and paid to his children. Maria May, and directed that he should
Nothing in said will shall prevent take charge of the real estate (except
the sale by the trustee of any part of the dwelling-house), manage the same,
the estate if clearly manifest that the collect rents, pay taxes, make repairs,
same shall be greatly for the benefit of etc. For such service he was authorized
his heirs. In event of sale, provision to retain a commission of five per cent,
is made for investment of the proceeds, of the money collected. He was re-
" Should either or any of the said quired to render a monthly account of
children have married and died and left collections and disbursements to said
issue," their shares of the rents shall be Sarah Maria May, during her life, and
used for the support of said issue, and after that to the heirs. Provision for
any surplus shall be invested in bonds his removal by action of the remaining
and turned over to them on attaining devisees was made; and he was also
lawful age. The said wife is appointed excused from giving bond as trustee,
executrix as well as trustee, and relieved
5 E. of F. P. 57. 897 Volume 5.
6648. CREDITORS' SUITS. 6048.
and Sarah Maria May commanding them on a certain day and under
a certain penalty to be and appear in this court, then and there to
answer the premises and to stand to and abide by such order and
decree as may be made against him.
F. P. B. Sands,
Solicitor and of Counsel for Plaintiff.
( Verification. ) x
Form No. 6648."
Bill of Complaint.
To the Honorable Justices of the Superior Court within and for the
County of Bristol:
Humbly complaining, represents Cecilia C. Ricketson, widow, of
New Bedford within said county; that on the thirtieth day of June,
i8##, she recovered judgment in the Superior Court of the city and
county of San Francisco and state of California, against George B.
Merrill, of said city of San Francisco, for the sum of ^5,062. 99, gold
coin, and that by the laws of said state of California, said judgment
bore interest from said thirtieth day of June, i882, at the rate of seven
per cent, per annum, and now amounts to the surr. of $6,700; that no
part of said judgment has ever been paid, and the said George B.
Merrill, of said city and county of San Francisco, is indebted to your
complainant in said sum of 6,700.
And your complainant further represents, that the said George B.
Merrill has no property or estate which can be come at to be attached
for the satisfaction of said judgment; but she avers that under and
by virtue of the will of Edward Merrill, late of said New Bedford (p.
copy of which will is hereto annexed marked A), who was the father
of said George B. Merrill, which said will has been duly probated in
the Probate Court for the county of Bristol, commonwealth of Mas-
sachusetts, and whereof Southward Potter, 2d, of New Bedford, Edward
B. Merrill, of New York, in the state of New York, and James H.
Myrick, of Boston, in the county of Suffolk, are the executors and trus-
tees, the said George B. Merrill has acquired certain property, rights,
titles, and interests, legal or equitable, which cannot be come at to
be attached or taken on execution in a suit at law against said George
B. Merrill, but which in justice and equity, and according to the
provisions of chapter 151 of the Public Statutes, ought to be applied
to the payment and satisfaction of said judgment.
Wherefore your petitioner prays that a subpoena may be issued to
the said George B. Merrill, and to the said Southward Potter, 2d,
Edward B. Merrill, and James H. Mysick, as they are the executors
and trustees under said will of Edward Merrill, late of New Bedford,
deceased, directing them and each of them to appear before this hon-
1. As to the verification of a bill in 2, cl. n, as amended by Mass. Stat.
the District of Columbia, see vol. 3, p. (1884), c. 285, and that the creditor was
433, note 7. entitled to a decree appropriating from
2. This form is copied from the rec- the proceeds in the executor's hands, or
ord in the case of Ricketson v. Merrill, which might come to them for the
148 Mass. -J6, in which case it was held debtor, whether from sales of land here
that a creditor's bill might be brought or elsewhere, enough to pay the debt,
under Mass. Pub. Stat. (1882), c. 151, Consult note I, p. 874, supra.
898 Volume 5
6649. CREDITORS' SUITS. 6649.
orable court at a time to be fixed therein, and full, true and perfect
answer make to the allegations in this bill, but not under oath, the
benefit of which is hereby waived, or be defaulted.
And that your honors will order and decree that the said executors
and trustees shall pay over to your petitioner whatever sum or sums
of money now are or which shall at any time hereafter become pay-
able to the said George B. Merrill under the provision's of said will, in
satisfaction and payment of said judgment, until the same shall have
been fully paid, together with all interest which has accrued or shall
hereafter accrue thereon, and the costs of this proceeding.
And that the said George B. Merrill be adjudged a debtor of your
petitioner in respect of the premises, and be ordered to execute and
deliver to said executors and trustees a full discharge of all claims
against them as such executors and trustees, under the provisions of
said will, to the extent of said payments so ordered by the executors
and trustees to be made to your petitioner.
Cecilia C. Ricketson,
by her attorneys,
Crapo, Clifford & Clifford.
b. Express Trust.
Form No. 6649.
(Precedent in Bank of Commerce v. Chambers, 96 Mo. 461.)'
\Bank of Commerce, plaintiff, ~\
against ! In the St. Louis City Circuit Court.
B. Maziere Chambers and Julius [ To the October Term, i87.
S. Walsh, defendants.
Plaintiff states] 2 that on the eighth day of April, \%81, in a case
numbered 55,867, in the circuit court of the city of St. Louis, in the
state of Missouri, being a case of it, the Bank of Commerce, as plain-
tiff, against B. M. Chambers and Margaret F. Smith, defendants, it
recovered judgment against Chambers and Smith, for the sum of five
thousand one hundred and thirty-four dollars and thirty-five cents-
($5.134-35}, and costs, which judgment was therein ordered to bear
interest at the rate of ten (70) per cent, per annum from its date;;
that thereafter, to wit, on the eighteenth day of May, i881, the plain-
tiff caused an execution to issue on said judgment, which execution
1. This bill was demurred to in the who releases his curtesy in his wife's
lower court on the grounds that the pe- estate, accepting in lieu thereof an
tition did not state facts sufficient to income given him by her will, will be
constitute a cause of action, and did regarded as a purchaser of such in-
not state facts sufficient to entitle come, and not a mere recipient of his
plaintiff to equitable relief. The plain- wife's bounty, and the income will be
tiff declining to plead further, final subject to the claims of his creditors,
judgment was entered dismissing the notwithstanding the provisions of the
petition. The plaintiff appealed, and will exempt it from such claims,
the supreme court, by unanimous de- Consult note I, p. 874, supra.
cision, ordered ihe judgment reversed 2. The words and figures enclosed
and cause remanded to the circuit by [ ] will not be found in the reported
court with directions to enter a decree case, but have been added to render
for plaintiff, holding that a husband the form complete.
899 Volume 5.
6649. CREDITORS' SUITS. 6649.
was numbered 150, returnable to June term, 188!-, that said execu-
tion was directed and delivered to the sheriff of the city of St. Louis,
and was by him duly returned on the sixth day of June, i881, nulla
bona; that thereafter, to wit, on the nineteenth day of October, 188%, in
another case, 56,939, in the circuit court of the city of St. Louis, state
of Missouri, being the case of it, the Bank of Commerce, as plaintiff,
against B. Maziere Chambers and R. Graham Frost, as defendants, it
recovered a judgment against^. Maziere Chambers, who is a defend-
ant in the present suit, and R. Graham Frost, for the sum of five
thousand five hundred and fourteen dollars and thirty-seven cents
($5,514.37), and costs, which judgment was therein ordered to bear
interest at the rate of ten {10) per cent, per annum from date; that
thereafter, on the second day of January, 1884, the plaintiff caused an
execution to issue on said judgment, which execution was number
135, returnable to February term, i884', that said judgment was
directed and delivered to the sheriff of the city of St. Louis, and by
him duly returned, on t\\& fourteenth day of February, 1884, nulla bona.
And plaintiff further says that nothing has been paid on either of the
above mentioned judgments; that none of the defendants in either
said cases has any property or effects of any kind subject to execu-
tion and levy.
And plaintiff says that Mrs. Marie C. Chambers, the wife of defend-
ant B. Maziere Chambers, died on the ninth day of December, i883, in
the county of St. Louis, state of Missouri; that she made a will which
was duly probated in the probate court of St. Louis county, on the
twentieth day of December, i883; and a certified copy thereof was
fifed in the office of the recorder of deeds of the city of St. Louis,
state of Missouri, in book 723, page 81, on the twenty-fourth day
of December, i883; that among other provisions immaterial to this
case, the said testatrix gave the income of property worth half a
million dollars (500,000), which income is now twenty thousand dol-
lars (&0,000) per annum, to the defendant Walsh, in trust for the
defendant Chambers, during his natural life.
The language of the will on this point is as follows: {Here was set
out the section of the will in question. ) x
1. The section of the will quoted in the would by the laws of Missouri, then in
petition was as follows: force, be declared to be my rightful
" Seventh. All the rest and residue heirs had I survived him; provided,
of my estate, real, personal and mixed, that such heirs be descendants of mine,
whereof I shall die seised, entitled or they or the survivor of them shall have
possessed, I give, bequeath and devise only a contingent estate in the property
to my brother Jutius S. Walsh, in trust, thus inherited, to become vested only
that he manage, hold and dispose of on his or hers, the survivor, attaining
the same during the natural life of my majority, and upon the death of any
husband; that quarterly he pay the net one, the inheritance to be declared to
rents, issues and profits arising there- the exclusion of my husband, my desire
from into the proper hands of my hus being that my estate should remain in
band alone, or such person or persons my family, if it cannot among my de-
as he. my husband, by any order in scendants, and I give to my said trustee
writing may for that purpose appoint, the power to sell or convert any
and, after the death of my husband, to part of the trust property and the pro-
convey to such person or persons, for ceeds thereof, to reinvest in such real
such estates and in such portions, as or personal estate or in such securities
900 Volume 5.
6649. CREDITORS' SUITS. 6649.
And plaintiff further says that defendant Chambers had an estate
by the curtesy in the real estate of his deceased wife, from which, if
he had retained it, he would have had an income of at least fifteen
thousand dollars ($15,000) per annum, which said income would have
been subject to seizure and sale upon execution by plaintiff, to satisfy
its judgments hereinbefore set forth.
Plaintiff further states that, for the purpose of hindering, delaying
and defrauding plaintiff, and for the purpose of securing to his own
use an estate which he, said Chambers, believed to be secure from
attack and seizure by plaintiff herein, he did, heretofore, to wit, on
the thirtieth day of December, iS83, by deed, duly recorded in the
office of the recorder of deeds of the city of St. Louis^ state of Mis-
souri, and in book number 714, page 525 thereof, convey his said
estate by the curtesy, as required by the will of his wife, to the
defendant Julius S. Walsh, in consideration of the provision in his
favor in the said will of his wife. And plaintiff further says that the
defendant Walsh has accepted the position of trustee for defendant
Chambers, under the will of the latter's wife, and by reason of the
conveyance of the estate by the curtesy to him by defendant Cham-
bers, he, said Walsh, pays over to said Chambers, quarterly, as such
trustee, the income of the trust estate, to the amount of five thousand
dollars ($5,000) per quarter.
And plaintiff -further says that the deceased testatrix did not
leave, and never had, any equitable separate estate; that she in-
herited the property she left from her father; that there are
no debts proved against her estate, though it has been in pro-
cess of administration since December 23, iS83, and that there are
no debts in existence to be proved. And plaintiff further says it is
as to my said trustee may seem expedi- or resignation of my said trustee, or
ent and discreet; or to employ the same that by any cause he be incapacitated
in the improvement of any portion of or disqualified for the performance of
my real estate, giving also to my said the duties of the trust, I authorize my
trustee power to lease over for a term husband by writing under his seal and
of years, not exceeding thirty, but in signature, and duly acknowledged as
every instance of such sale, conversion, in release of deeds, to name and ap-
lease or improvement, the written con- point another trustee, who from the
sent of my husband thereto to be first date of the filing of such instrument for
had and obtained, and without such record in the proper office in the said
consent no exercise of powers herein city of St. Louis, shall be subrogated in
conferred to be valid, my object, and the lieu and stead of said Julius S.
my only object, and I have by the Walsh, the same as is herein orginally
creation of this trust none other, than named, and of course to be subjected
because of the affection I entertain for to the same trust, limitations, condi-
my husband, the tender love which has tions, restrictions and provisions here
characterized our union with each contained. This power of appointment
other, the fear he may become embar- is a continuing one, to be exercised as
assed, I may, of my own estate, always often as necessity require. The pro-
throughout his life, secure to him an visions herein made for my husband
ample independence forever, free from are upon condition that within six
the claims and demands of any cred- months after the probate of my will, he
itor he may now or hereafter have, and by deed, duly executed and in the said
without any right to intervene, or se- city of St. Louis duly recorded, release
quester of the revenues of the trust for any right, title or estate as tenant by
the payment of their claims or de- the curtesy he may have."
mands. And in the events of the death
901 Volume 5.
6650. CREDITORS' SUITS. 6650.
wholly without remedy as to the collection of its two judgments
above set out, unless this court order and decree that the defendant
Walsh pay quarterly to plaintiff what, under the terms of the will,
and by reason of the conveyance of said estate by the curtesy, he
would otherwise pay to defendant Chambers, until the plaintiff's said
judgment shall be satisfied.
Wherefore plaintiff prays that defendant Chambers be enjoined
from receiving, and defendant Walsh be enjoined from paying him,
any of the income provided for in the will of Mrs. Marie C. Cham-
bers, until the plaintiff's judgments are satisfied; and that defendant
Walsh be ordered to pay plaintiff, in part satisfaction of them, each
quarter of a year, the income of the estate of which he is trustee for
defendant Chambers, until they, said judgments, are fully satisfied;
and that such further relief be granted plaintiff as to the court may
seem proper.
[Albert Arnstein,
J. P. Maginn,
Attorneys for Plaintiff.] 1
e. Secret Trust.
Form No. 6650.*
To the Judge of the Circuit Court of the Fifth- Judicial Circuit of the
State of Florida in and for Putnam County, in Chancery sitting:
John Dunning and James Palmer, of the city St. Augustine, in the
county of St. Johns and state of Florida, copartners, doing busi-
ness in said city of St. Augustine under the firm name and style of
Dunning 6 Palmer, and F. S. Selover and John Doe, of said city,
county and state, doing business in said city of St. Augustine under
the firm name of F. S. Selover 6" Co., on behalf of themselves and all
other unsatisfied creditors of B. E. Carr 6" Co., who shall come in
and contribute to the expense of this suit, bring this their bill against
Sophia R. Carr, John T. Carr and James W. Allen, all of the city of
Palatka, in the county of Putnam and state of Florida, lately copart-
ners doing business in the city of St. Augustine aforesaid under the
firm name and style of B. E. Carr &" Co., and James Burt, as trustee
for said Sophia R. Carr of said city of Palatka, and Caleb W. Loring,
of the city of Boston in the commonwealth of Massachusetts, both
individually and as trustee for said Sophia R. Carr, and George Burt,
of said city of Palatka.
And thereupon your orators complain and say that on the sixth day
vi June, A. D. 1 875, your orators, John Dunning and James Palmer,
under the name of Dunning 6^ Palmer, recovered judgment against
the defendants, Sophia R. Carr, John T. Carr and James W. Allen,
under the firm name of B. E. Carr &> Co., in the Circuit Court of
Duval county, Florida, for the sum of twelve hundred and ninety-five
dollars and thirty cents. That on the sixth day of June, A. D.
1. The words enclosed by [] will not in the case of Loring v. Dunning, 16
be found in the reported case, but have Fla. 119, in which case a decree for
been added to complete the form. complainants was affirmed on appeal,
2. This form is substantially the bill Consult note I, p. 874, supra.
902 Volume 5.
6650. CREDITORS' SUITS. 6650.
your orators, F. S. Selwer and John Doe, under the name of F. S.
Selover e?" Co., recovered judgment against said defendants under said
name of B. E. Carr & Co.., in the same court, for the sum of four hun-
dred and ninety-eight dollars and sixty-eight cents. That both of said
judgments were duly docketed in the county of Putnam, and that
afterward the said judgments so recovered in manner aforesaid
remaining in full force and effect and unpaid and unsatisfied, execu-
tions were duly issued upon both said judgments on the ninth day of
June, A. D. i875, and on said day were delivered to the sheriff of said
county of Putnam, and afterward, on tbef*Mday of July, A. D. i87<?,
were duly returned to the clerk's office of said county of Putnam
unsatisfied, with the return of said sheriff thereon that no property
could be found belonging to said defendants, B. E. Carr & Co., or to
any one of said defendants subject to be levied upon and sold under
said execution.
That neither of the defendants, Sophia R. Carr, John T. Carr and
James W. Allen, are seised or possessed of any property in their own
name liable to legal sale under said executions.
That prior to the recovery of said judgments the said defendants,
under the firm name aforesaid, carried on the business of merchants
and traders in the city of St. Augustine, in the county of St. Johns
aforesaid, and that said judgments were recovered for goods, wares
and merchandise sold and delivered to them. That by the terms of
the articles of copartnership under which said defendants carried on
the said business, the defendant Sophia R. Carr had the control and
direction of the business of said firm, and that in the purchase of
goods and management of the business of said firm she had, under
said articles, a controlling interest and voice. That your orators
sold and delivered the goods, wares and merchandise to the defend-
ants upon the credit and financial responsibility of the defendant,
Sophia R. Carr, and at the request of the said Sophia R. Carr as one
of said firm.
That your orators had been informed and believed, prior to the
sale of said goods, by the defendants and by the said Sophia R. Carr,
that the said Sophia R. Carr had a large income from property held
in trust for her general use and benefit, both in the state of Florida
and in the commonwealth of Massachusetts, and that such property so
held in trust, or the income thereof, or both, would be ample security
for and liable and subject to the payment of any obligations or judg-
ments against said defendant Sophia R. Carr; and reposing confidence
irt the credit of said Sophia R. Carr, arising from said trust estate,
they sold and delivered said goods, wares and merchandise to the
defendants.
That defendant Sophia R. Carr is the widow of one Burrough E.
Carr, and that said Burrough E. Carr died intestate some time prior
to the formation of said firm of B. E. Carr & Co., and prior to the
sale and delivery to defendants of said goods, wares and merchandise.
That for several years subsequent to the death of said Burrough E.
Carr the said Sophia R. Carr received her support and maintenance
chiefly from the business and goods and merchandise of said firm of
B. E. Carr 6 Co., and not out of the trust estate hereafter set forth.
903 Volume 5.
6650. CREDITORS' SUITS. 6650.
That the defendant Caleb W. Loring is a brother of the defendant
Sophia R. Carr, and holds in trust in the commonwealth of Massachu-
setts for the said Sophia R. Carr a large amount of valuable real and
personal property, and that the income thereof by way of rents and
interest, or otherwise, is largely in excess of the necessary and proper
expenditures for the support and maintenance of the said Sophia R.
Carr. That the defendant James Burt is a trustee, as hereinafter
stated, for the said Sophia R. Carr, and as such trustee is seised in
fee, and has the possession of, a large quantity of valuable real estate
in the city of Palatka aforesaid.
That on or about the thirteenth day of March, A. D. i85#, one Robert
R. Reed and Mary his wife, and Burrough E. Carr and Sophia his wife,
and George Burt and Lucy his wife, all of the city of Palatka afore-
said, sold and conveyed by deed in fee unto one Isaac H. Bronson, as
the party of the second part, about twelve hundred acres of land situate
in and about what is now the city of Palatka. That on the twenty-
second day of March, A. D. i852, as your orators are informed and
believe, the said Isaac H. Bronson duly made a declaration of trust
under the deed aforesaid in favor of the said Sophia R. Carr and
Lucy Burt, whereby the said Sophia and Lucy were declared the cestuis
que trust of the said property conveyed to Isaac H. Bronson as afore-
said, and the said Isaac H. Bronson promised and bound himself to
manage and control said tract of land under certain restrictions, and
to pay over to each of the said cestuis que trust or beneficiaries, or to
their heirs and assigns, one-third of the net proceeds arising from
said lands, either by sale or otherwise. That said declaration of
trust has never been recorded in said Putnam county or elsewhere,
to the knowledge of your orators, who have no knowledge of, and
have no means of ascertaining the exact terms and provisions of said
declaration of trust, except by discovery from the defendant.
That on or about the twenty-sixth day of May, A. D. i855, the said
Burrough E. Carr, Sophia R. Carr, George Burt and Lucy Burt exe-
cuted an instrument in writing in the presence of witnesses wherein
it is recited that a declaration of trust was declared by the said Isaac
H. Bronson, on the twenty-second day of March, A. D. i8<5#, of the
character hereinbefore stated, and wherein it is further recited that
on the fifteenth day of May, A. D. iS55, the said Burrough E. Carr and
George Burt, and the said Isaac H. Bronson, made and executed an
agreement whereby it was agreed and provided that said Isaac H.
Bronson should be and was, from and after the date thereof, released
and discharged from the further execution of said trust, and from
all liability on account thereof to said cestui que trust.
And your orators further complain and say that by the terms and
effect of the aforesaid instrument bearing date the twenty-sixth day
of May, A. D. 1 855, the said Burrough E. Carr and Sophia his wife,
and George Burt and Lucy his wife, appointed the defendant James
Burt as the person to take the legal title to said real estate, and
thereby direct and authorize and require the said Isaac H. Bronson
to convey all the said real estate then undisposed of in fee to the
said James Burt, who is to hold the property in trust, and to execute
to the said parties to said instrument such declarations of trust as
904 Volume 5.
6650. CREDITORS' SUITS. 6650.
might hereafter be agreed upon. That soon after the aforesaid
instrument was executed the said Isaac H. Branson did execute and
deliver a deed of convey-ance of said real estate to the defendant
James Burt, whereby the legal title passed and vested absolutely in
the said James Burt. That while it is notorious and generally known
in said county of Putnam that the deed last aforesaid^was executed
and delivered, said deed has never been recorded in said county.
That on the third day of August, A. D. i8J<9, the said James Burt did
execute and deliver a declaration of trust in favor of said defendant
Sophia R. Carr, whereby he agreed and bound himself to hold a cer-
tain portion of said real estate hereinafter specified in trust for the
said Sophia R, Carr, her heirs and assigns. That in the said decla-
ration of trust last mentioned it is duly recited that James Burt
aforesaid, at the instance and request of the said Burrough E. Carr
and Sophia his wife and George Burt, had conveyed absolutely in
fee simple, by deed bearing date the third day of August aforesaid,
one-half of the unsold part of said Palatka tract property then
remaining in his hands to George Burt. That said lands held in trust
by the said James Burt for the said Sophia R. Carr, her heirs and
assigns, have been divided into city lots in the city of Palatka. That
before the declaration of trust last aforesaid was made, the part of
said trust property or real estate originally conveyed to said Isaac
H. Bronson as aforesaid, which belonged to and was intended for the
said Lucy Burt, had been duly set apart to her; and that the said
Lucy Burt departed this life several years ago, and that her heirs
have no interest whatever in the aforesaid lots claimed as the por-
tion of the defendant Sophia R. Carr.
That on or about the tenth day of November, A. D. i870, the said
Sophia R. Carr, Maria J. Carr, Annie C. Gilbert and John T. Carr,
the widow and heirs of said Burrough E. Carr, made and executed a
certain writing under seal to Wilkinson Call, Esq., wherein it is recited
that certain real estate in the city of Palatka aforesaid, meaning the
real estate hereinbefore mentioned, was conveyed to James Burt by
said Burrough E. Carr in his lifetime, and that said James Burt had
made a declaration of trust of said property for the use and benefit
of said Sophia R. Carr. That said declaration had not been recorded,
and that said Sophia R. Carr desired said trust to be made of record
and placed beyond a doubt, and to make the said Wilkinson Call
trustee, and to make the trust to her irrevocable. That after such
recital the said writing purports to be a power of attorney to the said
Call to sell said real estate provided it can be sold for twenty-four
thousand dollars, and to invest the proceeds in bonds of the United
States, the bonds to be held by said Call under his sole control and
direction in trust for said Sophia R. Carr. That after the execution
of said writing to said Call, the defendant Sophia R. Carr lost her
confidence in said Call, and pretended to be alarmed for the safety
of her property. That afterward, to wit, on or about the twenty-
ninth day of December, A. D. i87.7, she the said Sophia R. Carr and
the said Wilkinson Call made and executed a certain deed or instru-
ment under seal, to the defendant Caleb W. Loring, whereby the said
Sophia R. Carr and the said Caleb W. Loring pretended that all the
905 Volume 5.
6650. CREDITORS' SUITS. 6650.
interest of the said Sophia R. Carr in, to and of the said real estate
was conveyed to the said Loring. That the consideration expressed
in the deed last aforesaid is seventeen hundred and sixty-seven dollars
and seven cents, and other good and valuable considerations, but
your orators aver that the defendant Caleb W. Loring did not pur-
chase said real estate in good faith for good and valuable and
adequate consideration, and did not pay anything of value for said
deed to him; that said deed is a mere pretense and device entered
into between said Sophia R. Carr and said Caleb W. Loring for the
double purpose of wresting from the said Wilkinson Call any authority
or control which he then was supposed to have over the said property,
and to protect the interest of the said Sophia R. Carr in said lands
and lots aforesaid, and to place said property beyond the reach of
your orators.
That said Loring was, before said pretended deed was made, a
trustee for said Sophia R. Carr, and as such trustee from time to
time did hand over money arising from said trust estate held by him
to the said Sophia R. Carr; and that if any money was delivered to
the said Sophia by the said Loring at the time said deed was made,
it was the money of the said Sophia, or money of the said Loring
advanced by the said Sophia, as a mere color or pretense, to be reim-
bursed out of said trust estate held by said Loring.
That the goods, wares and merchandise aforesaid were sold and
delivered before the last aforesaid deed was given, and said B. E.
Carr 6 Co. were then indebted for the same, and by such deed said
Sophia R. Carr and said Caleb W. Loring hoped and intended to
defraud your orators out of their demands. That said deed last
mentioned is a mere colorable deed, and not real and bona fide; and
that if it were otherwise, the said Caleb W. Loring, if he acquired any
interest in said real estate, acquired the same with notice that James
Burt aforesaid held the legal title thereto and property aforesaid, in
trust as aforesaid. And your orators aver that the said Caleb W.
Loring and the said Sophia R. Carr are now and have been for some
time endeavoring to persuade the said James Burt to convey by deed
in fee the said land and city lots to the said Caleb W. Loring for the
purpose of obstructing your orators and other creditors in the recov-
ery of their demands.
That said Caleb W. Loring, in his answer filed the nineteenth day of
March, A. D. i87#, to a suit brought in said Circuit Court of Putnam
county. Florida, by James R. Van Brunt and Henry L. Slaight against
said Sophia R. Carr, James Burt and Caleb W. Loring, admitted that
the legal title to said land and lots was vested in the said James
Burt. That the said real estate in Palatka aforesaid is estimated
to be of the value of twenty thousand dollars, and that said Sophia R.
Carr has and receives, and is entitled to receive from the property
held in trust in the commonwealth of Massachusetts by the said Caleb
W. Loring, an annual income of several thousand dollars, which is
largely in excess of the amount necessary for her support and main-
tenance. And your orators aver that they have been informed, not
only by the aforesaid defendant and declaration, but otherwise, and
believe and allege to be the fact, that neither the said James Burt nor
906 Volume 5.
6651. CREDITORS' SUITS. 6651.
the said Loring holds any of the trust property aforesaid upon the
specific trust to apply the income for the support of the said Sophia
R. Carr.
That said Sophia R. Carr promised to pay some of the creditors of
the said firm of B. E. Carr& Co. out of the money arising from said
trust estate in the commonwealth of Massachusetts, but now refuses so
to do, and pretends and alleges that said trust estate Is not subject
to the payment of said creditors.
To the end, therefore, that the said James Burt and Caleb W.
Loring, trustees as aforesaid, each pay over to your orators whatever
sum or sums of money now are, or which shall at any time hereafter
become, payable to the said Sophia R. Carr under the provisions of
said trusts, in satisfaction and payment of said judgments, until the
same have been fully satisfied, together with all interest which has
accrued or shall hereafter accrue thereon, and the costs of this pro-
ceeding; and that the said Sophia R. Carr be adjudged a debtor of
your orators in respect of the premises, and be ordered to execute
and deliver to said trustees a full discharge of all claims against them
as such trustees under the provisions of said trusts, to the extent of
said payments so ordered by the trustees to be made to your orators,
and that your orators may have such other and further relief in the
premises as their case requires and to your honor seems meet. May
it please your honor to grant unto your orators the state's writ of
subpoena directed to the said Sophia R. Carr, John T. Carr, James
W. Allen, James Burt, George Burt and Caleb W. Loring, command-
ing them and each of them at a certain time and under a certain
penalty therein to be inserted personally to appear before your honor,
and then and there to answer all and singular the premises, and to
stand to and perform and abide such order and decree therein, as to
your honor shall seem meet.
John Dunning.
H. Bishop, Jr., James Palmer.
Of Counsel for Complainants. F. S. Selover
( Verification. ) x John Doe.
9. To Enjoin Transfer of Note and Foreclosure of Mortgage
Held by Debtor and to Apply Same to Plaintiff's Claim.
Form No. 6651.'
Bristol, ss. Supreme Judicial Court,
Almon H. Tucker in Eq. \
vs. >
John McDonald et als. )
1. As to the verification of a bill in reach and apply in payment of his debt
equity in Florida, see vol. 3, p. 435, property of the debtor which cannot be
note 5. come at to be attached or taken on
2. This form is copied from the record execution, although the debt is secured
in the case of Tucker v. McDonald, 105 by mortgage.
Mass. 423, in which case it was held Consult note i, p. 874, supra.
that a creditor may maintain his bill to
907 Volume 5.
6651. CREDITORS' SUITS. 6651.
Bill in Equity.
Respectfully shows Altnon H. Tucker of Attleborough in said county,
that on the twenty-ninth day of June, A. D. 1866, John McDonald of
said Attleborough, and John Turner, then of said Attleborough, but now
believed to be in Philadelphia, gave their promissory note, for value
received, for the sum of one thousand dollars, payable to one Edward
McDonald or order, in two years from its date; a copy of said note is
as follows: {Here was set out a copy of note.)
And the plaintiff says that on the twenty-fourth day of July, A. D.
iS68, said Edward McDonald, payee of said note, duly assigned and
transferred said note to the plaintiff, and he now holds the same,
there being due thereon the principal and interest from said twenty-
fourth day of July, 1868.
And the plaintiff says that said John McDonald and John Turner,
makers of said note, have no property known to him which can be
come at to be attached or taken on execution in a suit at law against
them; but he says that on fat fourteenth day of July, A. D. 1866', said
John Turner, one of said makers, being indebted to said John Mc-
Donald, the other maker, in the sum of nine hundred dollars, then gave
him his negotiable promissory note for said nine hundred dollars,
payable one-third in one year, and two-thirds in three years from same
date, and at the same time gave him a mortgage on certain personal
property therein mentioned to secure said note; a copy of said mort-
gage is hereto annexed, marked A, and made a part of this bill; and
$,&\& John McDonald now owns and holds said nine hundred dollar note
and mortgage as security for the payment of the last instalment of
six hundred dollars, which will fall due thereon July 14, A. D. i869.
And the plaintiff says that subsequently to the making of said
nine hundred dollar note and mortgage, saidy^/z Turner, the maker
thereof, sold and transferred to one Robert Wolfenden, of <s>&\& Attle-
borough, all his remaining interest in the personal property, so mort-
gaged, and said Wolfenden took possession of the same and then
agreed with said Turner to assume and pay said six hundred dollars,
when the same should become due; and said Wolfenden is now ready
and willing to pay the same to said John McDonald, or to any of his
creditors to whom he may become liable in law or equity to pay the
same.
Wherefore, inasmuch as the plaintiff has no plain, adequate and
complete remedy at law for the collection of his one thousand dollar
note, he prays that said Robert Wolfenden may be enjoined from pay-
ing the balance of said nine hundred dollar note to said John Mc-
Donald, or to his order, but may be ordered to pay the same, when
due, to this plaintiff in partial payment of his one thousand dollar note;
and that said John McDonald may be enjoined from assigning or
transferring said nine hundred dollar note and mortgage to any other
person, and from collecting or receiving payment of the same, and
from taking any steps to foreclose said mortgage, or take possession
of said mortgaged property, and from every act or thing to compel
the payment thereof by said Robert Wolfenden, until the further order
of this court, or some justice thereof; and that such other orders
and decrees may be made as justice and equity require.
908 Volume 5.
6652. CREDITORS' SUITS. 6652.
And that a subpoena may issue to said John McDonald, John Turner
and Robert Wolfenden to appear and answer to this bill, the plaintiff
hereby waiving the oath to said answers.
Almon H. Tucker.
Attleborough, July 2nd, i869.
( Verification as in Form No. 6641. )
II. To OBTAIN DISCOVERY OF PROPERTY OF JUDGMENT DEBTOR. 1
Form No. 6652.*
Supreme Court, City and County of New York.
William Hart, Jr. , plaintiff,
against
Charles H. Albright and Joseph
Steindler, defendants.
The complaint of the above named plaintiff shows to this court:
I. That on the first day of May, i897, at the'(y and county of New
York, in the Supreme Court in and for the city and county of New
York, in this state, the plaintiff recovered a judgment, which was
duly rendered by said court against the defendant for one thousand
dollars.
II. That on said day said judgment was docketed in the office of
the clerk of said county, and on the sixth day of May, iS98, a tran-
script thereof was filed, and the said judgment was docketed in the
clerk's office of the city and county of New York, in this state.
III. That on the eighth day of May, iS98, an execution in due form
was issued upon the said judgment against the personal and real
property of the defendant, to the sheriff of said city and county of
New York, in which county the defendant then resided.
IV. That the said execution has been duly returned by said sheriff
wholly unsatisfied.
V. That a short time before the commencement of the action in
which the judgment was obtained, and after the indebtedness upon
which the said judgment was obtained had accrued, the said defend-
ants were, and for several years previous thereto had been, engaged
in mercantile business at No. 515 Broadway, in the city and county
of New York, and as plaintiff is informed and believes, various
persons became indebted to them to a large amount, and that these
said defendants had at the commencement of this action debts
due them to a large amount, to wit, to an amount not less, as
plaintiff is informed and believes, than the sum of one thousand
dollars, a considerable portion of which are evidenced by charges
on their books of account, which plaintiff is unable to see and
1. Consult note i, p. 874, supra. mentary proceedings, his right to an
2. This form, except for the caption, action upon grounds which formerly
is the complaint in the case of Hart v. would have sustained a creditor's bill
Albright, 28 Abb. N. Cas. (N. Y. Super, to obtain discovery of property con-
Ct.) 74, in vvhich case it was held, not- cealed, withheld and transferred in
withstanding the relief afforded by the fraud of creditors is still preserved,
code to a judgment creditor by supple-
909 Volume 5.
6653. CREDITORS' SUITS. 6653.
examine, and therefore unable to specify, and cannot learn and
does not know the particular items or amounts of said indebted-
ness or the names of the several persons from whom the same are due,
but is informed and believes that several of them owing defendants,
in the aggregate, a sum of not less than one thousand dollars, reside in
the city and county of New York and are solvent and able to pay the
respective claims against them.
VI. Upon information and belief that at or before the commence-
ment of the action in which said judgment was obtained, the said
defendants conveyed and assigned to persons to the plaintiff unknown,
and whose names the plaintiff is unable to learn, certain property
debts and choses in action belonging to said defendants to a certain
amount, to wit, to an amount not less than five thousand dollars, in
fraud of their creditors and of the plaintiff; and that after satisfying
all lawful claims of these assignees against the defendants there still
remains over and above said claims and due and payable to said
defendants a certain large amount, to wit, an amount not less than
one thousand dollars.
Wherefore the plaintiff demands:
(1) That the said defendants be adjudged to apply to the amount
of said judgment and interest thereon, together with the costs of this
action, said property debts, things in action and equitable interests
belonging to them or held in trust for them or in which they are in
in any way or manner beneficially interested.
(2) That they are enjoined from selling, transferring or interfering
with said property debts, things in action and equitable interests.
(3) That a receiver may be appointed of all said property, equi-
table interests, things in action and effects of the said defendants,
and said defendants directed to execute to him an assignment
thereof, and said receiver sell or otherwise dispose of the same and
convert the same into money as soon as may be, and that said receiver
apply so much of the proceeds thereof as may be necessary for that
purpose to the payment of the plaintiff's said debt with interest and
the costs of this action.
(4) And for such other and further relief as may be just.
Betts, Atterbury, Hyde cr* Betts,
Attorneys for Plaintiffs.
III. BY CREDITORS OF A CORPORATION. 1
1. FOP Ratable Distribution of Assets.
Form No. 6653.
(Precedent in Baxter v. Moses, 77 Me. 466.)*
State of Maine, Cumberland, ss. William H. Baxter, of Deering, in
the county of Cumberland, aforesaid, complains against: Oliver Moses,
1. Consult note I, p. 874, supra, tions of nulla bona. This error, how-
See also the title CORPORATIONS, ante, p. ever, has been remedied by the insertion
of such an allegation. See infra, note
2. A demurrer to this bill was sus- i, p. 912.
tained on the ground that it contained Consult note I, p. 874, supra.
no allegation of a return on the execu-
910 Volume 5.
6653. CREDITORS' SUITS. 6653.
Galen C. Moses, John H. Kimball, Charles Russell and James D. Robin-
son, of Bath, in the county of Sagadahoc, and William P. Frye, of
Lewiston, in the county Q{, Androscoggin, and Edwin Plummer, of Lis-
bon, in said county of Androscoggin, and the Androscoggin Rail-
road Company, a corporation duly chartered by law and doing busi-
ness in said county of Cumberland, and represents and avers:
1. That 'prior to the first day of January, A. D. r85, the said
Androscoggin Railroad Company was duly chartered and organized
under the laws of this state and operated a railroad, by it constructed
under the provisions of their charter from a point near Leeds Junction,
on the railroad, then known as the Androscoggin and Kennebec Rail-
road, in the county of Androscoggin, to the town of Farmington, in the
county of Franklin.
2. That subsequent to said period of time, said Androscoggin Rail-
road Company contracted and operated an extension of said railroad,
from said point on said Androscoggin and Kennebec Railroad to the
town of Brunswick, in said county of Cumberland, and to the city of
Lewiston, in said county of Androscoggin, and still operate the same
through the said company or their lessees.
3. That upon saidjirst day of January, A. D. i&5#, the said Andro-
scoggin Railroad Company duly issued its bonds, to the amount of tw&
hundred thousand dollars, in several denominations, by the provisions
of which the principal was payable at the office of the treasurer of
said company, on the first day of January, A. D. i870, in the stock of
the company, at par, and the interest thereon was payable semi-
annually, on the first day of January and July, in each and every
year after said date of January 1, iS58, and annexed to said bonds
coupons, to the amount of the several semiannual interest sums
coming due thereon. Said bonds were payable to S. H. Read, or
bearer, and issued under the seal of said company.
4. That said bonds remain unpaid and undischarged in principal
and interest to the extent hereinafter described, to wit: (Here were
described the unpaid bonds and coupons annexed to each bond.)
5. That your complainant is the legal owner of said bonds and
coupons, and the amounts due upon them are due to him, the said
complainant.
6. That said Oliver Moses, Galen C. Moses, John If. Kimball, Charles
Russell, James D. Robinson, William P. Frye and Edwin Plummer are
directors of said Androscoggin Railroad Company. That sa\&JohnH.
Kimball is president and said Galen C. Moses is treasurer of said
company.
7. That said persons have held said offices and trusts for a long
time heretofore, and as such trustees and officers have taken the
income and profits of said railroad, and now hold large amounts of
money on account of and belonging to said railroad company.
8. That said railroad company hold no other property than that so
as aforesaid taken and held by said persons.
9. That said complainant is a creditor of said Androscoggin Rail-
road Company, beyond and beside the amount of said bonds and
coupons, upon and to the amount of the following described claims,
viz: (He re followed a description of seven judgments?)
911 Volume 5.
6653. CREDITORS' SUITS. 6653.
[That said judgments so recovered in manner aforesaid remaining
in full force and effect, and the costs, and charges of suit and
damages aforesaid unpaid and unsatisfied, complainant, on theory/
day of January, A. D. i880, for the purpose of obtaining satisfaction
of said judgments, sued and prosecuted out of said court writs of
fieri facias, directed to the sheriff of said Cumberland county, by which
said writs the said sheriff was commanded that of the goods, chattels,
lands and tenements of the SQA&. Androscoggin Railroad Company he
cause to be made the sums of (setting out the amounts to be made under
each execution}, which complainant in said court recovered against said
defendant, the Androscoggin Railroad Company; and that afterwards,
to wit, on or about the twenty-first day of January, A. D. i880, the
sheriff of said county returned on the said writ to him in that behalf
directed and delivered him as aforesaid, that after due search he had
been unable to find within said county of Cumberland any goods,
chattels, lands or tenements of the said Androscoggin Railroad Com-
pany, whereof the amount of said judgment and execution, or any
part thereof, could be made, as by the said writs of fieri facias, and
the returns of the said sheriff indorsed thereon as aforesaid, now on
file in the office of the clerk of the said court, will more fully
appear.] 1
That the said complainant has demanded of the said Androscoggin
Railroad Company, and said directors and treasurer, at the office of the
treasurer of said company, the payment of said bonds and coupons,
according to the terms and conditions of said instrument, and offered
to surrender said bonds and coupons as required by the terms therein
recited, and the payment of the other claims held by your complain-
ant herein before described, and payment of each and every and all
of said bonds and coupons and other claims was by said company,
directors and treasurer refused, and have never been paid or other-
wise discharged to the time of the making of this complaint, but now
remains in full force, and due to your complainant.
That said directors and treasurer have received large amounts of
money belonging to said company, and have unlawfully and fraudu-
lently distributed the same among themselves, and are still holding
the same, to an amount more than sufficient to pay the claims of
your complainant herein before described, and all other lawful claims
against said company, in fraud of your complainant's rights in the
premises; that he can not reach said funds, by attachment, or any
process in the courts of law granted, or practiced, and is in danger of
losing his whole claim and demand against said company by the
fraudulent and unlawful acts and practices of said directors and
treasurer, without such relief as your honors may grant him in
equity.
And your complainant is informed and believes, and therefore
charges, that the said directors and treasurer have received from the
Maine Central Railroad Company, a corporation existing under the
laws of this state, a large sum of money for the use and lease of said
railroad of said Androscoggin Railroad Company, to wit: the sum of
< 1. The words and figures enclosed by [ ] have been added to correct the defect
in the bill pointed out in the judgment.
912 Volume 5.
6653. CREDITORS' SUITS. 6653.
two hundred and sixty-three thousand dollars and now hold the same;
that the particular days and times when so received, and the par-
ticular individuals of said board of officers to whom said sum was paid,
he is unable now to give information to the court, but does charge
and inform the court that said sum was received by the directors of
said Androscoggin Railroad Company, from said Maine Central Railroad
Company, and is now held by said respondents.
And the complainant is informed and believes, and therefore
charges, that said respondents received from the Maine CentraC Rail-
road Company, on account of a lease of said Androscoggin Railroad,
executed A. D. i87.7, to wit: on the twenty-ninth day of June, A. D.
i&71, the sum of thirty-three thousand thirty-three hundred and thirty-
three dollars and thirty-three cents, and scrip of said Maine Central
Railroad Company to the amount and value of one hundred and ten
thousand dollars, and two thousand shares of the capital stock of said
Maine Central Railroad Company of the value of one hundred and twenty
thousand dollars, and all of the value of two hundred and sixty-three
thousand three hundred and thirty-three dollars and thirty-three cents,
and that said directors have fraudulently and without lawful authority
distributed the proceeds of the same among themselves, and now
withhold the same from the creditors of said Androscoggin Railroad
Company, and in fraud of their rights in the premises.
And your complainant avers that the said Oliver Moses, Galen C.
Moses, John H. Kimball, Charles Russell, James D. Robinson, William
P. Frye and Edwin Plummer, hold in their own names and under
their control, nearly all the stock of the said Androscoggin Railroad
Company, to wit, a much greater number than a majority in number
of said shares, the exact number of which is to your complainant un-
known, and that they control the action of said company in their own
interests and fraudulently combine against the interests of the cred-
itors of said company, to withhold all the property, so as aforesaid
received, from the creditors of said company, and neglect and refuse
to make any report or return of their doings and actings as said offi-
cers, and have so neglected for more than ten years last past, or to
give any information of the financial condition of said company,
although your complainant has sought such information through
process of this court, and that he can not, by reason of their
fraudulent and unlawful practices, obtain a satisfaction of his claims
of the said company.
And your complainant further represents that ne brings this bill in
behalf of himself and all other unsatisfied creditors of said Andro-
scoggin Railroad Company, who shall come in and join in this bill, and
by leave of court become parties thereto.
And now your complainant seeks relief in the premises of this court
sitting in equity, and prays that said respondents, each and all of
them severally, be required to make full answer upon their several
oaths to all the matters herein alleged, and for general relief in the
premises, as well as for the special relief hereinafter prayed for.
And for special relief he prays that said directors may be held to
account for all money and property by them or either of them received
for and on account of said Androscoggin Railroad Company, since the
5 E. of F. P. 58. 913 Volume 5.
6654. CREDITORS' SUITS. 6654.
twentieth day of June, A. D. i87-?, and for all money and property
belonging to said company, by them or either of them heir 1 on said
twentieth day of June, A. D. iS71, to the end that the same may be
turned over to a receiver for such disbursement to the creditors
of the company as they are entitled to have in the payment and
extinguishment of their claims and demands, and,
That your honors will appoint a receiver to receive and dispose
such money and property and make such orders and decrees as shall
be necessary to determine the manner and amount of disbursements
to be made, and,
That your honors will appoint a master to determine the amount
due such creditors as may become parties to this bill.
[And your complainant prays for such other and further decrees
as to the court may seem just and proper in the premises.
William H. Baxter.
R P. Tapley, Attorney for Complainant in Equity.] 1 .
2. To Collect Unpaid Stock Subscriptions. 2
Form No. 6654.
(Precedent in Haslett v. Wotherspoon, i Strobh. Eq. (S. Car.) 209.)*
State of South Carolina, \ T n ,
Charleston District. \ In Chance T-
To the Honorable the Chancellors of the said State:
Humbly complaining, show unto your honors, your orators, John
Haslett, Alexander Robinson and William Lloyd, executors of the last
will and testament of John Haslett, Esq., of the city of Charleston,
deceased, for and on account of themselves, and all other creditors
of the Charleston New Theater Company, who shall come in and con-
tribute to the expense of this suit; that, heretofore, to wit, in the
year iS85, a number of gentlemen in the city of Charleston, defend-
ants in this suit, voluntarily associated themselves together as mem-
bers of a joint stock company, for the purpose of building a theater in
the said city, by means of funds to be raised by themselves; and at
a meeting of the subscribers to this project, held on the tenth day of
March, i835, it was resolved, that a committee of five trustees should
be elected amongst the said subscribers, to manage all matters con-
nected with the building of the said theater, and generally to act for
the interests of all concerned in furthering the objects of their asso-
ciation; whereupon, the following gentlemen were duly elected trus-
tees, to wit: Robert Wotherspoon, James Rose, Henry Gourdin, Richard
W. Cogdell and William A. Carson, Esqs., who forthwith proceeded
to the discharge of the various duties devolved on them, as the man-
aging committee of the said theater company; that the said trustees,
1. The words enclosed by [] will not abolished in South Carolina and the
be found in the reported case, but have code practice substituted, but this form
been added to render the form complete, is inserted in its entirety owing to its
2. See also substance of a similar bill value as a precedent of this particular
in Lane's Appeal, 105 Pa. St. 50. class of bill in those states where the
3. The chancery practice has been chancery practice still obtains.
914 Volume 5.
6654. CREDITORS' SUITS. 6654.
on behalf of themselves and their associates, having contracted to
purchase a lot of land as a site for the theater, it was resolved, at
a meeting held by them, on the twelfth day of March, i&?<5, that they
would immediately proceed to procure plans, and estimates for con-
tracts, for building the said theater, according to a general plan
then adopted by them; that in consequence of an invitation to that
effect, proposals were soon after submitted to the saidlrustees, by
Messrs. Fogartie & Sutton, bricklayers, for the brick-work necessary
for the building of the said theater, for the sum of fourteen thousand
dollars, and by Messrs. Ephriam Curtis and Company, carpenters, for
the wood- work necessary thereto, for the sum of thirteen thousand five
hundred dollars; which said proposals were accepted by the said trus-
tees, on the seventeenth day of February, i&?7, and were afterwards
embo'died in the shape of written agreements between the said trus-
tees, for and on account of themselves and their associates, of the
one part, and the said contractors, Fogartie &* Sutton, and Ephriam
Curtis and Company, respectively, of the other part; that the said
contracts for building the said theater were faithfully performed, to
the entire satisfaction of their employers, the trustees aforesaid, who
from time to time paid large sums of money to the said Fogartie &
Sutton, and Ephriam Curtis and Company, on their building contracts
aforesaid, by the hands of George W. Logan, Esq., who had been
appointed by the said trustees, as the treasurer of the said theater com-
pany ; that on the twenty-seventh day of February, iS38, Ephriam Curtis,
of the firm of Ephriam Curtis and Company, for money then due them
by the said theater company on their contract above mentioned, gave
his draft to Francis Lance, Esq., for the sum of fifteen hundred dollars,
payable thirty days after date, on George W. Logan, treasurer as
aforesaid, which said draft was duly accepted by the said George W.
Logan, as the treasurer of the said theater company, but not paid at
maturity, for want of funds; that on the tenth day of March, iS38,
Robert Wotherspoon, Esq., then chairman of the board of trustees, for
the purpose of paying Messrs. Fogartie <5r Sutton a large sum of
money then due them on their contract aforesaid, gave to the said
Fogartie 6 Sutton his draft for the sum of two thousand dollars on
George IV. Logan, treasurer, payable eight days after date, and charge-
able to the account of the said building contract of Fogartie cr Sut-
ton, which draft was also duly accepted, but not paid at maturity, for
want of funds; that the said drafts are now the property of your
orators, as executors of the last will of their testator, John Haslctt,
as part of the assets of his estate left by him at his decease.
Your orators further show unto your honors, that after the said
contracts were entered into between the said trustees and the said
contractors, Fogartie 6 Sutton, and Ephriam Curtis and Company, in
fact, after the theater itself had been erected and ready for use, to
wit, on the seventeenth day of December, i&37, the said trustees, Robert
Wotherspoon, James Rose, Henry Gourdin, Richard Cogdell and William
A. Carson, Esqs., and their associates in the said theater company,
were incorporated by the legislature of South Carolina, a body cor-
porate, for the purpose of building and conducting a theater in
the city of Charleston, by name and style of the Charleston News
915 Volume 5.
6654. CREDITORS' SUITS. 6654.
Theater Company, with a then capital of sixty thousand dollars; that
the charter so granted was duly accepted 1 at a meeting of the sub-
scribers to the association aforesaid, held on the twenty-eighth day of
February, i838, in pursuance of a call to that effect in the several
newspapers of Charleston, and that the said Robert Wother spoon, James
Rose, Henry Gourdin, Richard W. Cogdell and William A. Carson,
Esqs., were continued in the managing direction of the said corpora-
tion, under their former style of trustees, and were, from time to
time, elected by the said company, as the trustees or directors
thereof, until the company became utterly insolvent, and ceased to
meet for the transaction of any business connected with the said
theater.
Your orators further show unto your honors, that their testator,
confiding in the solvency of the said incorporated company, which
was held out to the world in their charter, with an actual and paid in
capital of sixty thousand dollars at the time of their incorporation,
brought an action at law against the said Charleston New Theater
Company, on the drafts aforesaid, in which action a verdict was had
for the plaintiff therein, and judgment entered up against the said
theater company, on \hzfirst day of February, i8.0, for the sum of
four thousand and sixteen dollars and ninety-five cents, of which sum
the amount of fifteen hundred dollars was afterwards, to wit, ' on the
twenty-first day of February, 18^-?, paid to your orators' testator, in
part satisfaction of the debt due on said judgment, by George W.
Logan, Esq., treasurer of the said company, by whom all previous pay-
ments had been made on the contracts aforesaid, out of which the
said debt arose.
And your orators have been advised, that the confidence of their
testator, that the said Robert Wotherspoon, James Rose, Henry Gourdin,
Richard IV. Cogdell and William A. Carson, and their associates in the
said incorporated theater company, possessed at the time of their
incorporation an actual capital of sixty thousand dollars, was well and
truly founded on the plain intent and meaning of their charter, and
was strengthened, also, by the fact, that the legislature has taken no
precaution to provide for the paying in of the said capital, or any
part thereof, prior to and before the said individuals should be allowed
to exercise their corporate privileges, nor imposed any responsibility
of a pecuniary kind on the members of the company, as the legisla-
ture had taken special care to provide in the case of other associations
incorporated by the same act.
And your orators further show unto your honors, that the execu-
tion which issued on the judgment aforesaid, against the goods and
1. It was held in this case that a bill paid in, as set forth in the charter; but
may be maintained by a creditor of a where an association afterward be-
corporation which has not sufficient comes incorporated it must be alleged
assets to satisfy all its creditors, against and proved that there has been some
the individual corporators who will be act or expression on the part of the
held individually liable to make good individuals of the association to signify
the deficiency, including that which their acceptance of the charter in order
may arise from the insolvency of to charge them in the character of cor-
any of the corporators, to the ex- porators.
tent of the capital professed to be Consult note I, p. 874, supra.
916 Volume 5.
6654. CREDITORS' SUITS. 6654,
chattels and real estates of the Charleston Nnv Theater Company, has
been returned by the sheriff of Charleston District, unsatisfied; because
he could find no property; real or personal, belonging to the said
company, out of which the money due on the said execution could
be made.
And your orators in fact show unto your honors, that the said
theater company is hopelessly insolvent; and that they have no
visible means of paying their debts, except their building, the New
Theater, the fee simple of which, subject to the mortgages thereon,
has been lately sold under an execution against the said company, for
a small sum of money, without paying any part of your orator's debt;
and that the said company has ceased to hold any meetings for the
transaction of business, or the election of officers for several years
past, and that the said company is, to all practical purposes, entirely
dissolved by their own acts; possessing at present neither the ability
nor the disposition to carry their original project into execution, and
against whom a judgment in law, or a decree of this Honorable
Court, would be of no more avail to your orators in obtaining pay-
ment of their debt, than would be a judgment against any admitted
pauper.
As your orators further show unto your honors, that at the time
the said Robert Wotherspoon, James Rose, Henry Gourdin, Richard Cog-
dell, William A. Carson, and their associates, were incorporated, the
said theater association were actually indebted to a large amount for
the building of the said theater, on the contracts aforesaid, made by"
their managing committee, the said trustees, who have, since the act
of incorporation, assigned and transferred to the said incorporated
company all the real estate which they held as trustees of the theater
association aforesaid.
And your orators further show unto your honors, that they have
been advised that no act of incorporation could relieve the said trus-
tees and their associates from the payment of debts, which they
owed for the construction of the said theater, on contracts made
between the said trustees and the said Fogartie 6 Sutton and Ephriaw
Curtis and Company; and least of all, that no act of the said trustees
and their associates can divest them, so far as the rights of your
orators are concerned, of a liability which attaches to all and every
member of the said theater association on their contracts made by
the said trustees, as a committee in behalf of the said association;
and although your orators have been advised that the said trustees
are personally and individually liable on the contracts made by them
for building the New Theater, yet your orators, actuated by a sense
of justice which revolts at enforcing their claims only against those
who have in good faith acted as the agents of others, who are equally
liable with themselves, have been induced to forego any such remedy
against the trustees merely, and to appeal to your honors for such
relief against the said trustees and their associates, as the nature of
the case requires, in justice and good faith to all parties concerned.
And your orators have accordingly, both by themselves and their
agents, applied to and requested the said trustees and their asso-
ciates, defendants in this cause, to pay them the several sums of
917 Volume 5.
6654. CREDITORS' SUITS. 6654.
money due them on the contracts made by the said trustees with
Fogartie e^ Sutton, and with Ephraim Curtis and Company , as above men-
tioned; and your orators well hoped that such, their just and reason-
able requests, would have been complied with, as in justice and equity
they ought to have been; but now so it is, may it please your honors,
the said trustees and their associates, contriving how to injure and
oppress your orators in the premises, absolutely refuse to comply
with your orators' aforesaid reasonable request. And to countenance
such their unjust conduct, they the said trust ees and their associates,
pretend that they are not personally liable for any contracts or agree-
ments made by the said trustees, for building the said theater, but
that their liability is restricted to the payment of their individual
subscriptions, which they have already paid in to the joint fund, and
beyond which payment they never agreed or expected to be bound
for any expenditures growing out of the building of the said theater;
whereas your orators charge the contrary to be true, and that each
and every member of the said theater association is liable in his own
private estate for the entire debts incurred by them for building the
said theater, on contracts entered into before their incorporation;
and that as to subsequent creditors who trusted the Charleston New
Theater Company on the faith of their charter, your orators charge
that the stockholders of the said theater company are compellable in
this honorable court, in favor of their creditors, to make up among
themselves so much of their capital of sixty thousand dollars, as the
said company has not actually expended in building and conduct-
ing a theater in Charleston, and to hold the same as a fund to which
the said creditors may have recourse for the payment and satisfaction
of their debts against the said company, which they had trusted on
the full assurance of their possessing such an amount of capital
actually paid in, before the granting and acceptance of their charter.
All which actings, doings and refusals of the said trustees and their
associates are contrary to equity and good conscience, and tend to
the manifest wrong and injury of your orators.
In consideration whereof, and forasmuch as your orators are with-
out remedy in the premises at common law, and cannot have ade-
quate relief except in the court of equity, where matters of this sort
are properly cognizable and relievable, to the end, therefore, that
the said trustees, Robert Wotherspoon, James Rose, Henry Gourdin,
Richard W. Cogdell and William A. Carson, and their associates in
the said theater company, who are impleaded in this Honorable
Court, for and on account of themselves and other members of the
said association, who are not made personally parties to this suit, by
reason of the delay, vexation and difficulty that would inevitably
result from any attempt to bring such numerous parties before the
court, may, upon their several and respective corporal oaths, accord-
ing to the best and utmost of their several and respective knowledge,
remembrance and belief, full, true, perfect, and distinct answers
make, to all and singular the matters aforesaid, and that as fully
and particularly as if the same were here repeated, and they there-
unto severally and respectively distinctly interrogated; and more
especially, that the said trustees and their associates may, in manner
918 Volume 5.
6654. CREDITORS' SUITS. 6654.
aforesaid, answer and set forth whether the said trustees did not,
on or about the twenty-seventh day of February, i857, or at some
other time, enter into certain contracts with Messrs. Fogartie 6 Sut-
ton, bricklayers, and Messrs. Ephraim Curtis and Company, carpenters,
for the building of the New Theater in Charleston, as your orators
have hereinbefore set forth; and whether the said trustees were not
parties to the said contracts, for and on account of themselves and
their associates, subscribers for building a theater in Charleston-, and
whether they did not from time to time, by their treasurer, George
W. Logan, Esq., pay large sums of money to the said Fogartie 6 Sut-
ton, and Ephraim Curtis and Company, for and on account of the said
building contracts; and whether the said drafts accepted by the
said Logan, as aforesaid, were not for and on account of money due
to the said contractors for their work, labor and materials used and
employed in building the said theater, and furnished at the request
of the said trustees, and whether the said drafts have ever been
paid, except partially by a payment of fifteen hundred dollars, made
by George IV. Logan, Esq., treasurer, on account of the said debt to
your complainant's testator, on the twenty-first day of February, iSJ^l;
and whether your orators have not, by themselves and their agents,
made such application and requests as are hereinbefore in that behalf
mentioned, and whether the said trustees and their associates have
not, each and all of them, refused to comply therewith, and why;
and that the said trustees and the rest of the members of the said
theater association may be compelled, by and under the decree and
direction of this Honorable Court, to pay your orators whatever may
be found due to them on the drafts aforesaid; and that, for and on
account of such parties who may hereafter come in as aforesaid, and
who are only creditors of the Charleston New Theater Company as a
corporate body, the said defendants may account for the amount of
capital that has been paid in by them, as stockholders thereof, and
declare whether the same has been expended in building and con-
ducting a theater in Charleston-, and distinctly set forth what, in fact,
was the amount of their capital at the time of their incorporation,
and how the same has been invested; and whether any call has been
made upon the stockholders, to make up among themselves, by
assessment or contributions, the amount of sixty thousand dollars, or,
at least, so much as, with the property of the company, may be suffi-
cient to pay their debts; and that the said defendants, as stock-
holders of the said Charleston New Theater Company, may be directed,
by and under the decree of this Honorable Court, by contributions
and assessments among themselves, to make up the whole amount
of their capital set forth in their charter, not expended in building
and conducting a theater in Charleston, for the purpose of paying the
debts of the said company, and to hold the same as a trust fund for
the benefit of their creditors, who have, in good faith, trusted them,
on the reasonable belief that they actually had, at the time of their
incorporation, that amount of capital which their charter held them
out to the world as possessing; and that your orators may have such
other and further relief in the premises as to your honors shall seem
meet, and the nature and justice of the case may require.
919 Volume 5.
6654. CREDITORS' SUITS. 6654.
May it please your honors to grant unto your orators a writ of
subpoena, to be directed to Robert Wotherspoon, James Rose, Henry
Gourdin, Richard Cogdell and William A. Carson, trustees and stock-
holders of the Charleston New Theater Company, and also to William
Aiken, Daniel Blake, Ker Boyce, Thomas A. Coffin, John Crawford,
John Eraser, Joseph E. Glover, James Hamilton, Wade Hampton, Leon
Herckenrath, William C. Heyward, Moses D. Hyams, Joseph Lawton, Vin-
cint Le Seigneur, David C. Levy, George W. Logan, Thomas O. Lowndes,
Charles A. Magwood, N. Russell Middleton and Ralph J. Middleton, ex-
ecutors of Arthur Mid'dleton, Henry A. Middleton, Oliver H. Middleton,
Thomas Milliken, Otis Mills, Moses C. Mordecai, Reuben Moses, Will-
iam Patton, James L. Pettigru, James Rose, Ralph S. Izard and
Stephen D. Doar, executors of Thomas Pinckney, Robert Pringle,
Lewis A. Pitray, William Ravenal, Samuel P. Ripley, Thomas J. Roger,
Thaddeus Street, John Strohecker, Abraham Tobias, Elias Vanderhorst,
Joshua J. Ward, Charles Warley and Aaron S. Willington, members
and stockholders in said company, commanding them at a certain
day, and under a certain penalty, therein to be limited, personally to be
and appear before your honors, in 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 fur-
ther order, direction and decree therein, as to your honors shall seem
meet.
And your orators will ever pray, etc.
930 Volume 5.
CRIME AGAINST NATURE. 1
BY B. A. MILBURN.
I. WITH HUMAN BEING, 921.
1. In General, 921.
2. Assault with Intent to Commit, 925.
3. Solicitation to Commit, 926.
4. Submission to Commission of, 927.
II. BESTIALITY, 928.
i. With Beast, 928.
a. With Bird, 929.
CROSS-REFERENCES.
For the formal parts of Criminal Complaints, generally, see the title
CRIMINAL COMPLAINTS.
For the formal parts of Indictments, generally, see the title INDICT-
MENTS.
For the formal parts of Informations, generally, see the title IN FOR-
MA TIONS.
For matters of Substantive Law, see AMERICAN AND ENGLISH ENCY-
CLOPAEDIA OF LAW (2d ed.), title SODOMY.
For matters of Procedure, see ENCYCLOPAEDIA OF PLEADING AND PRAC-
TICE, title SODOMY.
I. WITH HUMAN BEING.
1. In General. 2
1. The term " crime against nature " is continuing down to *) " in a certain room
used as a title for this article, some- in the workhouse, then situate in the
what arbitrarily, to include all acts of parish aforesaid, in and upon onejane
sexual intercourse against the order of Mason, spinster, then a virgin of eleven
nature, which are in violation of the years, in the peace of God and our said
common law, or which are denounced lord the king, then and there being, did
by statutes, committed by a human be- violently and feloniously make an as-
ing either with another human being sault, and then and there the saidjane
or with an animal, or otherwise. The Mason, in the room aforesaid, did
words " sodomy " and " buggery " are wickedly, diabolically, feloniously, and
used in the statutes and by text-writers against the order of nature, carnally
as synonymous. Bestiality is a species know and a venereal affair in the funda-
of sodomy or buggery, being sexual in- ment of the said Jane Mason then and
tercourse by a human being with an there had; and her the said fane Mason,
animal, beast, or bird. See Am. & then and there wickedly, diabolicaly,
Eng. Encycl. of L., titles BESTIALITY; feloniously, and against the order of
BUGGERY; SODOMY. nature, in the said fundament of her
2. By Man with Woman. In 2 Chit, the said fane Mason, then and there did
Cr. L. 49, is given the following form: carnally know, and that sodomitical,
(Commencing as in Form No. 6653, ana" detestable, and abominable sin called
921 Volume 5.
6655.
CRIME AGAINST NATURE.
6655.
Form No. 6655.
(Precedent in 2 Chit. Cr. Law, 48.)'
{Middlesex. The jurors for our lord the king upon their oath
present,] 2 that fames King, late of [the parish of St. Paul, Covent Gar-
den, in the county of Middlesex, yeoman,] 2 not having the fear of God
before his eyes, nor regarding the order of nature, but being moved
and seduced by the instigation of the devil, on [the twentieth day of
February, in the sixth year of the reign of our sovereign lord George the
Fourth, by the grace of God, of the United Kingdom of Great Britain
and Ireland, king, defender of the faith,] 2 with force and arms at 3 [said
parish of St. Paul, Covent Garden, in the county si Middlesex aforesaid,*
in the dwelling-house of one George Jones,] 2 in and upon one Thomas
Logan* a youth about the age of seventeen years, then and there being,
feloniously, 5 did make an assault, and then and there feloniously,
wickedly, diabolically, and against the order of nature, 6 had a venereal
affair 7 with the said Thomas Logan, and then and there carnally
knew the said Thomas Logan, [and] then and there feloniously,
wickedly and diabolically, and against the order of nature, with the
said Thomas Logan, did commit and perpetrate the detestable and
abominable 8 crime of buggery 9 (not to be named among Christians),
buggery (not to be named among
Christians), then and there with the
said Jane Mason, wickedly, diabolically,
feloniously, and against the order of
nature, committed and perpetrated, to
the great displeasure of Almighty
God " {concluding as in Form No. 6653).
Chitty cites as the source of this form
Cro. C. C. (7th ed.) 230, and in support
of the proposition that an indictment
lies for this offense, Fortescue 91, 2
Chit. Cr. L. 49, note z.
1. This indictment, observes Chitty,
is similar to that in Co. Ent. 351^,
which was settled on great advice. 2
Chit. Cr. L. 48, note s.
2. The words in [ ] are inserted in
order to make the form complete.
3. Description of Place. In Co. Ent.
35ib, it is stated to have been com-
mitted " to wit, in the dwelling-house
of one , there." 2 Chit. Cr. L.
48, note t.
4. Description of Pathic. In Co. Ent.
35ib, he is described as a " male child."
2 Chit. Cr. L. 48, note u.
Description of Pathic as Human Being.
In People v. Moore, 103 Cal. 508, it
was charged that the alleged crime was
committed " in and upon the person of
Carl Kohler," and it was held that this
was a sufficient statement that it was
committed with a human being, as dis-
tinguished from an animal.
5. Feloniously Did Assault. In Co.
Ent. 351^, the word "feloniously" is
here omitted. 2 Chit. Cr. L. 48, note w.
6. Contra Naturae Ordinem, etc. The
indictment must charge that the of-
fend er contra natures ordinem rent, habuit
veneream , et c arnaliter cognovit. I Rus-
sell on Crimes (gth ed.), p. 938, citing
I Hawk. P. C., c. 4, 2, and 3 Inst.
58, 59. But in Davis v. State, 3 Har.
& j. (Md.) 154. Nicholson, J., said: " The
crime of sodomy is too well known to
be misunderstood, and too disgusting
to be denned farther than by merely
naming it. I think it unnecessary,
therefore, to lay the carnaliter cognovit
in the indictment."
7. Bern Habuit Veneream. The omis-
sion of an allegation that the defendant
" had a venereal affair, " etc., although
such an averment is usual, does not
vitiate the indictment, as such allega-
tion does not belong to the class of
"particular words of art which are so
appropriated by the law to express the
precise idea which it entertains of the
offense, that no -other words, however
synonymous they seem, are capable of
doing it," nor is the use of the omitted
words essential to make the statement
of the offense certain to a certain intent
in general. Lambertson v. People, 5
Park. Cr. Rep. (N. Y. Supreme Ct.) 200.
8. Abominable. In Co. Ent. 351, the
words " ab hominandum," meaning
"inhuman" were used, but the word
now usually used is "abominable." 2
Chit. Cr. L. 48, note x.
9. Necessity to Describe Offense as Bug-
gery. It has been said that it is not
922
Volume 5.
6656.
CRIME AGAINST NATURE.
6656.
to the great displeasure of Almighty God, to the great scandal of all
human kind, against the form of the statute 1 [in such case made and
provided,] 2 and against the peace [of our lord the king, his crown
and dignity.] 2
Form No. 6656.*
In the District Court of the Second Judicial District of the State of
Montana, in and for Silver Bow County.
The State of Montana, Plaintiff,
versus
Napoleon Chandonnet, Defendant.
At a regular term of the District Court of the Second Judicial Dis-
trict of the State of Montana, in and for Silver Boiv County, begun
sufficient to charge that the offender
contra natures ordinem rem habuit vene-
ream, et carnaliter cognovit; and that as
the statute describes the offense by the
term " buggery, " the indictment should
also charge peccatitmque illud sodomiti-
cutn Anglice dictum buggery adtunc et
ibidem nequiter, felonice, diaboticZ, ac
contrh naturam, commisit, ac perpetravit.
I Russell on Crimes (gth ed.), p. 938,
citing Fost. 424, who referred to Co.
Ent. 351^, as a precedent settled by
great advice. See also State v. Will-
iams, 34 La. Ann. 87, holding that the
indictment must include the additional
qualification of the crime as "bug-
gery." 2 Chit. Cr. L. 48, notej; 3 Inst.
59; and i East P. C. 480.
Sodomitical Practices. In Reg. v.
Rowed, 3 Q. B. 179, 43 E. C. L. 688, it
was charged that the defendants com-
mitted with each other, divers "nasty,
wicked, filthy, lewd, beastly, unnatural,
and sodomitical practices," but it was
not alleged what acts they committed.
Patteson, J., said: " We cannot know by
these general indictments what the
charge is. From such words occurring
in common parlance, we might, per-
haps, infer it, but in a legal view we
cannot."
1. Contra Formam Statuti. In Davis
v. State, 3 Har. & J. (Md.) 154, *it was
held that as the judgment of the court
might be either at common law or under
the act of assembly, the conclusion
contra for mam statuti was not improper.
2. The words in [ ] are inserted in
order to make the form complete.
3. This form is taken verbatim from the
record in the case of State v. Chando-
nette, to Mont. 280. The indictment
was drawn under Mont. Pen. Code,
tit. 9, c. 4, which provides punishment
for " the infamous crime against nature
committed with mankind, or any an : -
mal." The court said with reference
to this indictment: " That pleading is
the ordinary common-law indictment,
which is approved by all the writers
and precedents, and against the validity
of which no authorities are cited or ar-
guments made. It is our opinion that
the indictment is good."
Other Precedents. In Lambertson i/.
People, 5 Park. Cr. Rep. (N. Y. Supreme
Ct.) 200, the indictment, omitting the
formal parts, charged as follows: " That
George IV. Lambcrtson, now or late of
the city of Brooklyn, in the county of
Kings aforesaid, on the fifteenth day of
January, in the year of our Lord one
thousand eight hundred and sixty, at
the city and in the county of Kings
aforesaid, in and upon the body of
Peter Cohen, in the peace of God and of
the said people, then and there being
with force and arms, did feloniously
make an assault, and him, the said
Peter Cohen, then and there feloniously,
wickedly, diabolically, and against the
order of nature, carnally knew, and
then and there feloniously, wickedly
and diabolically, and against the order
of nature, with the said Peter Cohen,
did commit and perpetrate the detesta-
ble and abominable crime of buggery,
against the statute in such case made
and provided, to the evil example of
all others in like case offending, and
against the peace," etc.
In Wright v. State, 35 Tex. Crim.
Rep. 368, the indictment was sufficient
and was as follows: " In the name and
by the authority of the State of Texas:
The grand jurors, good and lawful
men, of the State of Texas and of the
County of McLennan, duly and legally
tried on oath by the judge of the Fifty-
fourth Judicial District of Texas, hold-
923
Volume 5.
6656.
CRIME AGAINST NATURE.
6656.
and holden at the Court House of the said county, on the sixth day
of January, A. D. i890, and continued from day to day thereafter,
by the adjournment of the said court, from day to day thereafter, until
the sixteenth day of April, A. D. i890, on which last mentioned day the
Grand Jury of the said county, duly drawn, impaneled, sworn and
charged to inquire into public offenses committed in the said county,
upon their oaths do present and say: That one Napoleon Chandonnet,
late of the county of Silver Bow, state of Montana, on or about the
first day of February, A. D. i890, at the county of Silver Bow, in the
ing session of the District Court in and
for McLennan County, touching their
qualifications as grand jurors, duly
elected, impaneled, sworn and charged
to diligently inquire into and true pre-
sentment make of all offenses against
the penal laws of the State of Texas,
committed within the body of the coun-
ty aforesaid, in session in said county,
upon their oaths in said District Court
of said McLennan County, in open
court present that on or about the jftA
day of August, in the year of our Lord
eighteen hundred and ninety-five, and
before the presentment hereof, with
force and arms in the county and State
aforesaid, Rufus Wright did then and
there unlawfully and against the order
of nature, have a venereal affair with a
beast, to-wit: a mule, and carnally
knew the said mule, and then and there
and thereby did commit against the or-
der of nature, the abominable and de-
testable crime of sodomy, against the
peace and dignity of the State."
Under Particular Statutes Alabama.
In Ala. Crim. Code (1886), p. 276,
will be found a statutory form of an in-
dictment for this offense.
Connecticut. Gen. Stat. (1888),
1522. An indictment under this stat-
ute, omitting the formal parts, should
charge as follows: " that at the town of
Salisbury, in the county of Litchfield
aforesaid, William A. Jones did on the
first day of January, in the year of our
Lord one thousand eight hundred and
ninety-six, wickedly and unlawfully and
against the order of nature have carnal
copulation with a man, to wit, Robert
Smith, against the peace and contrary
to the statutes in such case made and
provided, the said William A. Jones not
being forced to commit the aforesaid
unnatural and unlawful act, and the
said William A.Jones not being on the
day aforesaid under fifteen years of
age."
Massachusetts. Pub. Stat. Supp.
(1887), c. 436, i. An indictment un-
der this statute, omitting the formal
parts, should charge as follows: " that
William A. Jones, late of Northampton,
in the county of Hampshire, on the Jirst
day of January, in the year of our Lord
one thousand eight hundred and ninety-
six, at Northampton aforesaid, in the
county of Hampshire aforesaid, did un-
lawfully, knowingly, and wilfully, com-
mit an unnatural and lascivious act
with another person, to wit, Robert
Smith, against the peace," etc. An in-
dictment charging that the defendant,
at a time and place named, "did un-
lawfully, and feloniously commit a cer-
tain unnatural and lascivious act,"
with a person therein named, thus fol-
lowing the language of the statute
without further description, is sufficient.
Com. v. Dill, 160 Mass. 536, in which
case the court declared that the indict-
ment was sufficient without reference
to the provision of section 2, and post-
poned " to some future time a consid-
eration of the question how far the
legislature may go in simplifying in-
dictments."
Ohio. Bates' Anno. Stat. (1897),
7020-1. .An indictment under this stat-
ute, omitting the formal parts, should
charge as follows: "that Alexander
Bird, late of said county, on the eighth
day of November, 1890, at the county
aforesaid, unlawfully did have carnal
copulation with one Fannie Smith, in
an opening of the 'body of the said
Fannie Smith to-wit, her anus, which
said opening was not one of her sexual
parts, contrary to," etc.
Copulation in Month. In the follow-
ing states the statutes in express terms
denounce the act of having carnal
knowledge with another by penetrating
the mouth:
North Dakota. Rev. Codes (1895),
7187-
An indictment under this section,
omitting the formal parts, will be suffi-
cient if it charges that: " said Alexander
Bird, on the first day of January, 1896,
in the city of Fargo, in this county, did
feloniously, and carnally, know a male
924
Volume 5.
6657.
CRIME AGAINST NATURE.
6657.
state of Montana, did in and upon one Patrick Harrington, then and
there being, wilfully, unlawfully and feloniously make an assault, and
then and there feloniously, wickedly and against the order of nature
had a venereal affair with the said Patrick Harrington, and then and
there feloniously carnally knew him, the said Patrick Harrington, and
then and there did feloniously, wickedly and against the order of
nature with the said Patrick Harrington commit and perpetrate " the
infamous crime against nature," not to be named among Christians.
All of which is contrary to the form of the statute in such case made
and provided and against the peace and dignity of the people of the
state of Montana.
John T. Baldwin,
County Attorney of Silver Bow Co., Mont.
2. Assault with Intent to Commit. 1
Form No. 6657.
(Precedent in 2 Chit. Cr. L. 50.)'
(Commencing as in Form No. 6655, and continuing down to*) in and
upon one John Howard* in the peace of God and our said lord the
person, to wit, Charles Davidson, with
the mouth of him the said Alexander
Bird, contrary to the form," etc.
Pennsylvania. Pepp. & L. Dig.
(1894), p. 1327, 602.
In some other states the statutes are
broad enough to cover this offense:
Georgia. 3 Code Ga. (1895), 382.
Illinois. Starr & C. Anno. Stat.
(1896), p. 1261, par. 119; Honselman v.
People, 168 111. 172.
Massachusetts. Pub. Stat. (Supp.
1887.) c. 436, i.
New York. Pen. Code N. Y., 303.
Ohio. 2 Bates' Anno. Stat. (1897),
7020-1.
Under Ordinary Statutes. Penetra-
tion of the mouth is not sodomy within
the ordinary statutes. Rex v. Jacobs,
R. & R. C. C. 331; Prindle v. State, 31
Tex. Crim. Rep. 551.
1. Assault with Intent to Commit. In
some states the statutes, in terms, de-
nounce an assault with intent to com-
mit this offense.
Arizona. Pen. Code (1887), 342.
Georgia. 3 Code (1895), 386.
New Mexico. Comp. Laws (1897),
I353-
Pennsylvania. Pepp. & L. Dig.
(1894), p. 1328, 603.
Rhode Island. Gen. Laws (1896), c.
277, 18.
For forms in prosecutions for assault
with intern to commit crimes, generally,
see the title ASSAULT, vol. 2, p. 228
et seq.
Attempt to Commit the Crime. It has
been said that upon an indictment for
this offense the defendant may be con-
victed under 14 & 15 Vic., c. 100, 9,
of an attempt to commit the same. I
Russell on Crimes (gth ed.), p. 939,
citing i Hale 670, 3 Inst. 59, and i East
P. C., c. 14, 2. See also 3 Ga. Code
(1895), 386, denouncing the attempt
to commit the offense.
Attempted intercourse with cadaver is
prohibited in terms in
Minnesota. Stat. (1894), 6554.
New York. Pen. Code, 303.
2. Chitty refers to the forms in Cro.
C. C. (7th ed.) 167, and in Cro. C.
C. (8th ed.) 61; and advises that if it
be apprehended that the two acts to
complete the capital offense cannot
be proved, the indictment should be
drawn for an assault, andacountshould
be added charging the defendant with
soliciting another to commit buggery
with him. 2 Chit. Cr. L. 50, note r,
citing i East P. C. 437; 8. 9, 480.
3 . Age of the Person Assaulted. Chitty
observes that the precedent in Cro. C.
C. (7th ed.) 167, and Stark. 387, here
say, "an infant of the age of ten
years," but that this is unnecessary.
2 Chit. Cr. L. 50, note d. See also Cro.
C. C. (8th ed.) 61.
935
Volume 5.
6658.
CRIME AGAINST NATURE.
6658.
king, then and there being, did make an assault 1 with an intent, that
most horrid, detestable, and sodomitical crime (among Christians
not to be named), called buggery, 2 with the said John Hou>ard,
against the order of nature, then and there feloniously, wickedly,
and devilishly, to commit and do, to the great displeasure of Almighty
God, to the great damage of the said John Howard, and against the
peace of our said lord the king, his crown and dignity. 3
3. Solicitation to Commit.
Form No. 6658.
(Precedent in 2 Chit. Cr. L. so.) 4
(Commencing as in Form No. 6655, and continuing to*) the said
Charles Davidson, being a person of a most wicked, lewd, and aban-
1. Actual Beating and Wounding.
The precedents in Cro. C. C. (yth ed.)
167, and Stark. 387, here state, "and
him the said J. H., then and there did
beat, wound, and ill treat, so that his
life was greatly despaired of." But
these words are not in Cro. C. C. (8th
ed.) 61, and it is better, it would seem,
to omit them when they do not accord
with the facts. 2 Chit. Cr. L. 50, note<?.
2. Description of the Crime. In an
indictment for an assault with in-
tent to commit sodomy, or buggery, it
would seem that as the crime intended
to be committed is only an aggrava-
tion of the assault, it may be described
with less particularity than in an in-
dictment for the crime itself. Davis v.
State, 3 Har. & J. (Md.) 154.
3. Addition of Count for Common As-
sault. A count for a common assault
may be added. 2 Chit. Cr. L. 50, note
/, citing a note to Cro. C. C. (7th ed.)
167.
Other Precedents California. In
People -v. Williams, 59 Cal. 397, the
indictment, omitting the formal parts,
charged as follows: " The saidJoAn E.
Williams on the seventeenth day of
March, A. D. eighteen hundred and
eighty-one, at the said City and County
of San Francisco, did wilfully and un-
lawfully and feloniously make an as-
sault upon Harry George, with intent
to commit in and upon the person of
the said Harry George the infamous
crime against nature, contrary to the
form, force and effect of the statute in
such case made and provided, and
against the peace," etc.
In this case the court said: " The
acts constituting the offense are stated
in ordinary and concise language, and
in such manner as to enable a person
of common understanding to know
what is intended."
Maryland. In Davis v. State, 3
Har. & J. (Md.) 154, the indictment
charged that'the defendant " not hav-
ing the fear of God before his eyes,
but being moved and seduced by the
instigation of the devil, on, etc., with
force and arms, at, etc., in and upon
one Walter Chase, a youth of the age
of nineteen years, in the peace of God
and of the state of Maryland, then and
there being, did make an assault, and
him the said Walter Chase, then and
there did beat, wound, and ill treat,
with an intent that most horrid and de
testable crime (among Christians not
to be named) called sodomy, with him
the said Walter Chase, and against the
order of nature, then and there feloni-
ously, wickedly, and devilishly, to
commit and do, to the great displeas-
ure of Almighty God, contrary to the
Act of Assembly, in such case made
and provided, and against the peace,
government and dignity of the state."
This indictment contained a second
count in all respects like the first count,
which is given in the text, except that
it was alleged that the defendant's in-
tent was "then and there feloniously,
etc., with him the said Walter Chase,
against the order of nature to have a
venereal affair, and with him the said
Walter Chase, that sodomitical detesta-
ble and abominable sin (among Chris-
tians not to be named), called buggery,
then and there feloniously, etc., against
the order of nature to perpetrate and
commit."
4. Solicitations. The mere soliciting
another to the commission of sodomy
has been treated as an indictable of-
fense, i Russell on Crimes (gth ed.), p.
920
Volume 5.
6659. CRIME AGAINST NATURE. 6659.
doned mind and disposition, and wholly lost to all sense of decency,
morality, and religion, and devising, and intending as much as in him
lay, to vitiate and corrupt the morals of the said Alexander Bird, and
to stir up and excite in his mind filthy, lewd, and unchaste desires
and inclinations, on the day and year aforesaid, at the parish afore-
said, in the county aforesaid, did wickedly and unlawfully solicit and
incite, and endeavor to persuade the said Alexander Bird to permit
and suffer him the said Charles Davidson, then and there feloniously
and wickedly to commit and do that detestable and abominable
crime (among Christians not to be named), called buggery, with the
said Ale xander Bird, against the order of nature, to the great dis-
pleasure of Almighty God, to the great damage of the said Alexander
Bird, and against the peace of our said lord the king, his crown and
dignity.
4. Submission to Commission of. 1
Form No. 6659.
Court of General Sessions of the City and County of New York.
The People of the State of New York
against
Alexander Bird.
The grand jury of the city and county of New York, by this indict-
ment, accuse Alexander Bird* of the crime of submitting to the
commission of the detestable and abominable crime against nature,
in and upon his person, committed as follows:
The said Alexander Bird, on the sixteenth day of August, i8#7, at the
939, citing i Chit. Cr. L. 50, as contain- tated malice, entice (or allure or
ing a precedent for an indictment for instigate or aid) Robert Smith, the said
such solicitation. Chitty framed this Robert Smith being then and there a
indictment on the principle of Rex v. person under the age of twenty-one
Higgins, 2 East 5, 2 Chit. Cr. L. 50, years, to commit masturbation, con-
note . trary to the form of the statute in such
Pennsylvania, it would seem, is the case made and provided, and against
only state in which statutes in terms the peace," etc.
denounce the act of soliciting another 1. Submission to carnal knowledge
to permit and suffer the act of sodomy, against the order of nature is denounced
or buggery, to be committed with him, in terms in the following states:
as distinguished from an assault with New York. Pen. Code, 303.
intent to commit such acts. Pepp. & L. North Dakota. Rev. Codes (1895),
Dig. (1894), p. 1328, S 603. 7186.
Enticement, Allurement, etc., to Commit Pennsylvania. Pepp. & L. Dig.
Masturbation. Burns' Anno. Stat. Ind. (1894), p. 1327, 602, in terms de-
(1894), 2092, provides that whoever nounces only submission to the act
entices, allures, instigates, or aids, any when committed by penetrating the
person under the age of twenty-one mouth, but the statute impliedly covers
years to commit masturbation, or self- submission to other acts,
pollution, is guilty of sodomy. The patient or pathic may be indicted
An indictment framed under this as well as the perpetrator. Reg. v.
statute, omitting the formal parts, Allen, I3jur. 108, 2 Car. & K. 869, 61
should charge as follows: "that on the E. C. L. 869, i Den. C. C. 364, Temp.
i8th day of January, 1897, and in the & M. 55. See also Reg. v. Jellyman,
county of Rush and State of Indiana, 8 C. & P. 604, 34 E. C. L 547, holding
William A. Jones did unlawfully, feloni- that the pathic is an accomplice.
ously, purposely, and with premedi-
927 Volume 5.
6660.
CRIME AGAINST NATURE.
6660.
city of New York, in this county, did unlawfully, and feloniously,
submit and consent that Charles Davidson should carnally know him,
the said Alexander Bird, contrary to nature, to wit, in the anus of
him, the said Alexander Bird, and the said Charles Davidson, with the
consent and permission aforesaid, unlawfully and feloniously given
him by the said Alexander Bird, did unlawfully and feloniously know
him the said Alexander Bird, against the order of nature, to wit, in the
anus, which submission to the aforesaid carnal knowledge, contrary
to nature, was then and there done by the said Alexander Bird,
against the form of the statute in such case made and provided, and
against the peace of the people of the state of New York and their
dignity.
Daniel Webster, District Attorney.
II. BESTIALITY.
1. With Beast. 1
Form No. 6660.
(Precedent in 2 Chit. Cr. L. 49.)*
(Commencement as in Form No. 6655, and continuing to *) in a certain
cowhouse there, with [an animal, to wit] 3 a certain black cow, 4 then and
1. Animal or Beast. In the following
states the statute uses the word " ani-
mal: "
Arizona. Pen. Code (1887), 480.
California. Pen. Code (1897), 286.
Montana. Pen. Code (1895), tit. 9,
p. 4, $ 496.
New Mexico. Comp. Laws (1897), 3
1352.
New York. Pen. Code, 303.
North Dakota. Rev. Codes (1895),
7186.
Utah. 2 Comp. Laws (1888), 4509.
Virginia. Code (1887), 3793, uses
the term " brute animal."
West Virginia. Code (1891), c. 149,
12, uses the term " brute animal."
In the following states the statute
uses the word " beast: "
Colorado. Mills' Anno. Stat. (1891),
1213-
Georgia. 3 Code (1895), 384.
Indiana. Burns. Anno. Stat. (1894),
2092.
Louisiana. Voorhies' Rev. Laws
(1884), p. 132, 788.
Massachusetts. Pub. Stat. (1882), c.
207, 18.
Michigan. How. Anno. Stat. (1882),
9292.
Minnesota. Stat. (1894), 6554.
Missouri. Rev. Stat. (1889), 3796.
Nebraska. Comp. Stat. (1897),
6920.
Nevada. Gen. Stat. (1885),
4608.
New Jersey. i Gen. Stat. (1895), p.
1057, 33.
Oklahoma. Stat. (1893), 2186.
Oregon. i Hills' Anno. Laws (1892),
1874.
Pennsylvania. Pepp. and L. Dig.
(1894), p. 1327, 602.
Rhode Island. Gen. Laws (1896), c.
281, 12.
South Carolina. Crim. Stat. (1893),
254-
Tennessee. Code (1896), 6764.
Wisconsin. Sanb. and B. Anno.
Stat. (1889), 4591.
Wyoming. Rev. Stat. (1887), 884.
2. Chitty refers to the forms in Cro.
C. A. 17, and in Cro. C. C. (8th ed.) 86,
2 Chit. Cr. L. 49, note a.
3. The words in [ ] are inserted; they
are not found in the precedent.
4. Description of Animal as Bitch. In
Reg. v. Allen, i C. & K. 495, 47 E. C.
L. 495, it was charged that the defend-
ant " in and upon a certain animal
called a bitch, unlawfully, and wick-
edly, did lay his hands, " with in-
tent feloniously to commit bestiality
with the said animal, and then and
there unlawfully, and wickedly, did
attempt feloniously, etc., to know the
said animal, and it was held that the
description of the animal was sufficient,
92$
Volume 5.
6661.
CRIME AGAINST NATURE.
6661.
there being, feloniously, wickedly, diabolically, and against the order
of nature, had a certain venereal and carnal intercourse, and then
and there feloniously, wickedly, diabolically, and against the order
of nature, carnally knew the said cow; and then and there feloniously,
wickedly, and diabolically, and against the order of nature, with the
said cow, 1 did commit and perpetrate that detestable (concluding as in
Form No. 6655).
2. With Bird. 2
Form No. 6661.
{Commencing as in Form No. 6659, and continuing to *)of the detest-
able and abominable crime against nature, committed as follows:
The said Alexander Bird, on the first day of January, iW6, at the
city of New York, in said county, then and there did, with force and
arms, unlawfully, and feloniously, and against the order of nature,
carnally know a bird, to wit, a brown turkey hen, in the anus of the
said brown turkey hen, against the form (concluding as in Form No.
6659).
although the females of foxes and some
other animals are called bitches as well
as the female of the dog.
1. The words "with the said cow,"
which appear in the form given by
Chitty, are omitted in Cro. C. A. 17, 2
Chit. Cr. L. 49, note b.
Another Precedent Texas. In Cross
v. State, 17 Tex. App. 477, the indict-
ment, omitting the formal parts,
charged that the defendant "did then
and there unlawfully and wilfully com-
mit with a mare, same being a beast,
the abominable and detestable crime
against nature by then and there having
carnal connection with said beast, and
did then and there commit the crime of
sodomy with said beast," etc.
Statutory Form Alabama. In Crim.
Code (1886), p. 276, will be found a
statutory indictment for this offense.
By a Woman. See list of statutes
cited supra, note i, p. 928. The in-
dictment, omitting the formal parts,
may charge that " the said Fannie
Smith, on the first day oi January, 1896,
at the town of Huntington, in this
county, did then and there feloniously,
unlawfully, and voluntarily submit to
carnal knowledge of her the said Fannie
Smith, being had in the genital organs
of her the said Fannie Smith, by a malf
black setter dog, named Bowzer, against
the peace," etc.
2. Carnal Knowledge of Bird. In the
following states, the statutes in terms
denounce carnal knowledge pf any bird
by any person:
New York. Pen. Code, 303.
North Dakota. Rev. Codes (1895),
7186.
Under Ordinary Statutes. Russell
says: "An unnatural connection with
an animal of the fowl kind is not sodo-
my, a fowl not coming under the name
' beast '; and it was agreed clearly not
to be sodomy when the fowl was so
small that its private parts would not
admit those of a man, and were torn
away in the attempt." I Russell on
Crimes (gth ed.), p. 938, citing Rex v.
Mulreaty, Hil. T. 1812, Ms., Bayley, J.
In Reg. v. Brown, 24 Q. B. Div. 357,
however, it was held that it is a crime
to attempt to commit an unnatural of-
fense with a domestic fowl.
5 E. of F. P. 59.
929
Volume 5.
CRIMINAL COMPLAINTS. 1
I. IN PRELIMINARY PROCEEDINGS, 930.
II. FOR OFFENSES TRIABLE IN JUSTICES' AND OTHER INFERIOR
COURTS, 964.
1. In Justices' Courts, 964.
2. In Other Inferior Courts, 973.
a. Chairman of Board of Trustees, 973.
b. City Court, 974.
c. County Court, 975.
d. Mayor s Court, 977.
e. Municipal Court, 979.
f. Police Court, 979.
g. Probate Court, 984.
CROSS-REFERENCES.
For Forms of Criminal Complaints for Particular Offenses, consult the
Specific Criminal Titles throughout this work.
For the Formal Parts of Indictments in the various Jurisdictions, consult
the title INDICTMENTS.
For the Formal Parts of Informations in the various Jurisdictions, con-
sult the title INFORMATIONS.
See also the GENERAL INDEX to this work.
I. IN PRELIMINARY PROCEEDINGS. 2
Form No. 666 2. 3
The State of Alabama, )
Dale County. \
Personally appeared before me, Abraham Kent, a justice of the
1. Criminal complaints are variously inferior court acts upon the complaint,
designated as "complaints," " affida- affidavit, or information, and proceeds
vits," or "informations" in the stat- to try and punish the offender. For
utes of the various states. See infra, such latter proceedings see infra, this
forms and statutory citations appended title, Offenses Triable by Justices of the
to the forms in this article. Peace and Other Inferior Courts.
2. Preliminary proceedings refer to the For forms relating to warrants of ar-
proceedings before justices of the rest issued upon criminal complaints
peace, conservators of the peace, or consult the title WARRANTS OF ARREST.
like magistrates, for the examination of For forms relating to the commit-
persons charged with crimes and the ment and discharge of persons arrested
commitment of or holding to bail such under process issued upon criminal
persons to await the action of the grand complaints consult the title COMMIT-
jury or to be otherwise dealt with ac- MENT AND DISCHARGE, vol. 4, p. 926.
cording to law in courts of competent See also the title BAIL AND RECOGNI-
jurisdiction. These proceedings should ZANCE. vol. 2, p. i.
be distinguished from proceedings 3. Alabama. Crim. Code (1886),
where the justice of the peace or other 4255, 4256. These sections apply only
930 Volume 5.
6663. CRIMINAL COMPLAINTS. 6663.
peace 1 in and for said county, one Richard Roc, who being duly sworn,
on oath, says that before the making of this affidavit, to wit, on the
second day of January, iS98, in said county, the offense of arson in the
first degree was in the opinion of the complainant committed, and
that one John Doe is guilty of the said commission of the said offense,
against the peace and dignity of the state of Alabama.' 2 '
Richard Roe?
Subscribed and sworn to before me this fifth day of March, \ 898.
Abraham Kent, Justice of the Peace.
Form No. 6663.*
Territory of Arizona, plaintiff,
against
John Doe, defendant.
Territory of Arizona, \
County of Gila. \
Personally appeared before me, 6 Abraham Kent, a justice of the
peace, of precinct, county of Gila, territory of Arizona, this
fifth day of March, iS98, Richard Roe, of Globe, in the said county of
Gila, who being duly sworn complains and says [that on the second
day of March, in the year of our Lord one thousand eight hundred
and ninety-eight, at and in the county of Gila and territory of Arizona,
one John Doe, late of Globe in said county of Gila and territory of
Arizona aforesaid, did commit the crime of burglary in the first degree,
and that said John Doe, at the time and at the place last aforesaid
committed said crime in the manner following, to wit: the said John
Doe, at the time and place last aforesaid in the night-time of said
day, did then and there feloniously, forcibly and burglariously break
and enter the dwelling-house and building of one Samuel Short, there
to preliminary proceedings before com- manifest from the complaint that
mitting magistrates, and not to crimi- " Hattie Patterson," who verified and
nal prosecutions before a justice of the subscribed the same, was identical
peace or in a county court. Sale v. with Hattie Patison, who appeared be-
State, 68 Ala. 530. fore the officer and made it, and that
For formal parts of affidavits, gener- the difference in the spelling of the
ally, consult the title AFFIDAVITS, vol. name resulted from mere clerical mis-
i, p. 548 et seq. take, the error is immaterial. Reeves
Precedent of a complaint in bastardy v. State, (Ala. 1898) 23 So. Rep. 28.
proceedings may be found in Form No. 4. Arizona. Pen. Code (1887), ^ 1258.
3934. Nevada. Gen. Stat. (1885), fc 3985
Technical accuracy is not required in et seq.
preliminary proceedings. Brown v. New Mexico. Comp. Laws (1884),
State, 63 Ala." 97; Rhodes v. King, 52 2448.
Ala. 272. Consult these cases for in- For the formal parti of affidavits, gen-
stances of what is sufficient. erally, consult the title AFFIDAVITS,
1. Magistrates before whom prelimi- vol. i. p. 548.
nary proceedings may be had are 6. Magistrates to whom complaints
enumerated in the statutes. Ala. Crim. maybe made are enumerated in the
Code (1886), 4680. statute.
2. Need not conclude "against the Arizona. Pen. Code (1887), 1260.
peace and dignity of the state." Thomas Nevada. Gen. Stat. (1885), fc 3987.
v. State, 107 Ala. 61. New Mexico. Comp. Laws (1884),
3. Variance in Names. Where it was 2448.
931 Volume 5.
6664. CRIMINAL COMPLAINTS. 6664.
situate, with intent to commit grand larceny, and did then and there
feloniously and burglariously steal, take and carry away fifty gallons
of sherry wine, the personal property of the said Samuel Short, and
of the value of three hundred dollars^- contrary to the form, force
and effect of the statute in such case made and provided, and against
the peace and dignity of the people of the territory of Arizona.
Wherefore complainant, the said Richard Roe, prays that a warrant
may be issued for the arrest and apprehension of the said John Doe,
and that he may be dealt with according to the law.
Richard Roe. 2
Subscribed and sworn to before me this fifth day of March, i898.
Abraham Kent, Justice of the Peace.
{Deposition of informant or prosecutor annexed. ) 3
Form No. 6664.*
State of Arkansas, }
County of Pulaski, >- ss. Affidavit for Warrant of Arrest.
Big Rock Township, )
I, Richard Roe, do solemnly swear \h2& John Doe, in said county of
Pulaski, did on the second day of January, iS98, commit the crime of
rape, and pray a warrant from Abraham Kent, justice of the peace for
said county, to apprehend and bring said John Doe before said justice,
to be dealt with according to law.
Richard Roe.
Sworn to and subscribed before me \h\sfifth day of March, i898.
Abraham Kent, Justice of the Peace.
1. Charging Part of Complaint. The witness, tending to establish the corn-
matter in [ ] is what is called the charg- mission of the offense and the guilt of
ing part, and must of necessity vary the defendant.
according to the particular offense Arizona. Pen. Code (1887), 1270.
sought to be charged. While it is not California. Pen. Code(i897), 8n,
always necessary to use the same tech- 812.
nicality and accuracy in a criminal Idaho. Rev. Stat. (1887), 7516.
complaint as in an indictment or infor- Nevada, Gen. Stat. (1885), 3988.
mation.it is, however, a safe rule to Oregon. Hill's Anno. Laws (1892),
do so. For the charging part of an in- 1549.
dictment or information for any par- Information and belief may support
ticular offense consult the titles treating the deposition where the acts and cir-
of that offense, such as ABANDONMENT cumstances on which the complaint is
OF CHILDREN; ABDUCTION OF WOMEN; founded are given. People v. Mclntosh,
ABORTION; AFFRAY; ARSON AND BURN- (Supreme Ct.) 5 N. Y. Crim. Rep. 38.
ING; ASSAULT; BADGES, ETC.; BAR- 4. Arkansas. Sand. & H. Dig.
RATRY; BIGAMY, etc. (1894), 1963, makes it the duty of a
2. Signature by mark on the part of magistrate to issue a warrant upon in-
the complainant without attestation by formation given him "on oath,"charg-
a subscribing witness is sufficient ing some person with the commission
where the certificate of the committing of a public offense. When the affidavit
magistrate is to the effect that it was is made and the accused arrested, the
subscribed and sworn to by the com- affidavit is functus officio. It is not de-
plainant. State v. Depoister, 21 Nev. murrable Martin v. State, 46 Ark. 38.
107. For the formal parts of affidavits, gen-
3. This deposition must set forth the erally, consult the title AFFIDAVITS, vol.
facts stated by the prosecutor and his i, p. 548.
932 Volume 5.
6665.
CRIMINAL COMPLAINTS.
6667.
Form No. 6665.'
The People of the State of California ) ,,
against V Complaint for Burglary in the
John Doe. \ First De S ree -
State of California, \
Marin County. J ss "
Before me, Abraham Kent, a justice ot the peace 2 within and for the
county of Marin in the state of California, ibis fifth day of March,
i898, personally appeared one Richard Roe, who being first duly
sworn on oath says (continuing and concluding as in Form No. 6663).
ss.
Form No. 6666 .
State of Colorado, )
County of Dolores, j
The complaint and information of Richard Roe, made before Abra-
ham Kent, Esq., one of the justices of the peace 4 in and for the said
county, on fifth day of March, A. D. iS98, being duly sworn on oath
says that (continuing and concluding as in Form No. 6663).
Form No. 6667.*
State of Connecticut, \ ^ t ./
Hartford County. \ Town ^ Hartford.
To Abraham Kent, Esq., a justice of the peace 6 for Hartford
1. California. Pen. Code (1897),
806.
For the formal parts of affidavits, gen-
erally, consult the title AFFIDAVITS, vol.
i, p. 548.
For the sufficiency of the complaint un-
der criminal proceedings see People v.
Smith, i Cal. 9; People v. Velarde, 59
Cal. 457; Ex p. Dimmig, 74 Cal. 164;
People v Staples, 91 Cal. 23. A com-
plaint positive and direct in its alle-
gation of every fact necessary to
support the charge laid is a sufficient
deposition within the meaning of Cal.
Pen. Code, 811 et seq. People v.
Staples, 91 Cal. 23, distinguishing Ex
p. Dimrnig, 74 Cal. 164.
A mere affidavit in the form of an in-
formation, which only contains an ex-
pression of opinion of the affiant that a
certain person is guilty of a crime, and
which contains no evidence and is fol-
lowed by no deposition stating any fact
tending to show guilt, is insufficient
as a criminal complaint upon which to
issue a warrant of arrest. Ex p. Dim
mig, 74 Cal. 164, where the complaint in
question is set out in full.
2. Magistrates to whom the complaint
may be made are enumerated in the
statute. Cal. Pen. Code (1897), 808.
The complaint may be sworn to be-
fore a justice of the peace. People v.
Le Roy, 65 Cal. 613, although filed in a
police court.
District judges, prior to the abolition
of the district courts, were held to be
magistrates vested with authority to
hold accused persons to answer crimi-
nal charges. Ex p. Granice, 51 Cal.
375; Ex p. Walsh, 39 Cal. 705.
Need not conclude " against the form of
the statute." Ex p. Mansfield, looCal.
400.
3. Colorado. Mills' Anno. Stat. (1891),
1482-1484.
For formal parts of affidavits, generally,
consult the title AFFIDAVITS, vol. i, p.
548.
Amendment of complaint in preliminary
proceedings may be made. People v.
Mellor, 2 Colo. 708.
4. Magistrates to whom complaint and
information made be made are enume-
rated in the statute. Mills' Anno. Stat.
Colo. (1891), 1482.
5. Connecticut. Gen. Stat. (1888),
693, 694; Laws (1895), p. 466.
For examples of the charging part in a
Connecticut complaint see Forms Nos.
24". 3935- 3936. 395- 3963. 3967.
6. To Whom Made. To the court
having cognizance of the offense or to
some justice of the peace in the town
933
Volume 5.
6668. CRIMINAL COMPLAINTS. 6669.
county, in said town. Comes Richard Roe, a grand juror 1 in and for
said town of Hartford, and on his oath of office complaint and
information makes, that at said town of Hartford, on the tenth day
of March, i896, John Doe, of the town of Hartford in said county
{Here state the facts constituting the offense}? contrary to the form of
the statute in such case made and provided and against the peace.
Wherefore, the grand juror aforesaid prays process, and that the said
John Doe may be arrested and examined touching the allegations
contained in this complaint and be thereon dealt with according to
law. 3
Dated at Hartford this tenth day of March, A. D. iS96.
Richard Roe, Grand Juror.
Form No. 6 6 6 8 . 4
State of Delaware,
Kent County.
Be it remembered that on thisy^M day of March, A. D. \W8, per-
sonally came before me, Abraham Kent, a justice of the peace within
and for the county of Kent, state of Delaware, Richard Roe, of Dover
in said county, who, being by me duly sworn according to law, deposes
and says (continuing and concluding as in Form No. 6663).
Form No. 6669. 5
District of Columbia, to wit:
On this fifth day of March, A. D. one thousand eight hundred and
where the offense was committed, mitted, the justice shall carefully ex-
Conn. Gen. Stat. (1888), 88. amine the complainant, on oath or
1. By Whom Made. The grand jurors affirmation, and if he considers there is
of the several towns shall make due probable ground for the accusation he
complaint of all crimes and misde- shall issue his warrant.
meanors that shall come to their knowl- Where an offense is of an aggravated
edge except in towns where by law nature, or not within the limit of the
those duties are involved upon other justice's jurisdiction, the accused shall
officers exclusively. Conn. Gen. Stat. be committed or bound over to the
(1888), 88. proper court. Del. Rev. Stat. (1893), p.
Grand jurors may complain of viola- 732, 8, 12.
tion of town and borough by-laws and For formal parts of affidavits, gener-
regulations to a justice of the peace of ally, consult the title AFFIDAVITS, vol.
the town. Conn. Gen. Stat. (1888), 89. i, p. 548.
2. Charging part of complaint, see 5. District of Columbia. Comp.
supra, note I, p. 932. Stat. (1894), p. 310, 9, providing that
3. Need not conclude " against the any justice of the peace may, on corn-
peace and dignity of the state." State plaint under oath, issue a warrant re-
v. Miller, 24 Conn. 519; State v. turnable to the police court against
Holmes, 28 Conn. 231. persons accused of crimes committed
"Contrary to the form of the statute" in the district. Section 8, however,
is not fatal to the validity of the grand provides that justices of the peace shall
juror's complaint, even though it not exercise any jurisdiction over
charges a common-law offense. State crimes and offenses, either for exam-
v. Holmes, 28 Conn. 231. ination to commit or hold to bail or for
4. Delaware. Rev. Stat. (1893), p. final judgment.
734, 16, providing that when com- For formal parts of affidavits, gener-
plaint is made in due form to a justice, ally, consult the title AFFIDAVITS, vol.
alleging that an offense has been com- i, p. 548.
934 Volume 5.
6670. CRIMINAL COMPLAINTS. 6671.
ninety-eight, personally came before me, Abraham Kent, a justice of
peace in and for the District of Columbia, one Richard Roe, who, being
duly sworn according to' law, doth declare and say that, on the second
day of January, A. D. iS98, in the district aforesaid, John Doe did
(Here state facts constituting the offense)?- against the form of the stat-
ute in such case made and provided, and against the peace and gov-
ernment of the United States.
Richard Roe.
Sworn to and subscribed the////* day of March, \W8.
Abraham Kent, J. P. (SEAL)
Form No. 6670.*
(Fla. Rev. Stat. (1892), p. 895.)
State of Florida,
Marion County,
First District.
Before the subscriber, a justice of the peace 3 in and for said county,
personally came Richard Roe, who being duly sworn says, that one
John Doe, on the second day of March, A. D. \W8, in the county and
district aforesaid (If ere designate the nature of the offense, and describe
the circumstances of its commission as particularly as can be done.}*
Richard Roe.
Sworn to and subscribed before me \h\sfifth day of March, iS98.
Abraham Kent, Justice of the Peace.
Form No. 6671.*
(3 Ga. Code (1895), p. 884.)
Georgia, Bibb County. 6
Personally came Richard Roe, who on oath saith that to the best of
his knowledge and belief ''John Doe did, on the second day of March,
in the year \W8, in the county aforesaid, commit the offense of per-
jury* and this deponent makes this affidavit that a warrant may
1. Charging part of complaint, see 6. County in which the offense was
supra, note I, p. 932. committed must be stated. 3 Ga. Code
2. Florida. Rev. Stat (1892), 2870. (1895), 883.
For forms of complaint in this state see 7. To the Best of Affiant's Knowledge
Forms Nos. 2412, 3937. and Belief. It is only necessary that
For formal parts of affidavits, generally, the offense be charged to the best of
consult the title AFFIDAVITS, vol. i, p. affiant's knowledge and belief. Thomas
548. v. State, 91 Ga. 204.
3. Magistrates before whom such 8. The offense committed must be
complaints may be brought are enu- stated. 3 Ga. Code (1895), 883.
merated in the statute. Fla. Rev. Stat. The affidavit need not be more par-
(1892), 2869. ticular or specific than is necessary to
4. Consult Fla. Rev. Stat. (1892), uphold a warrant. Dickson v. Stale,
2871. 62 Ga. 583.
Charging part of complaint, seesufra. In Ray v. State, 15 Ga. 231, the affi-
note i, p. 932. davit is set out as follows:
5. Georgia. 3 Code (1895), 883 et "Georgia, Houston county:
serf. Before me, Wm. S. Moore, a Justice
For formal parts of affidavits, gener- of the Peace, personally came Jesse
ally, consult the title AFFIDAVITS, vol. Cooper, of said county, who being duly
i, p. 548. sworn, saith on oath, that on
935 Volume 5.
6672.
CRIMINAL COMPLAINTS.
6673.
issue for his arrest. 1
Richard Roe.
Sworn to and subscribed before me \ti\sfifth day of March, iS98.
Abraham Kent, J. P. 2
Form No. 6672.*
The State of Idaho plaintiff,* } Complaint for urglary in the First
iti^iiinst T-J
John Doe, defendant. 5 )
Personally appeared before me, Abraham Kent, a justice of the
peace 6 within and for the Blank precinct, county of Shoshone, state of
Idaho, this fifth day of March, i898, Richard Roe, of Murray, in the
county of Shoshone aforesaid, who being duly sworn complains and
says (continuing and concluding as in Form No. 6663).
State of Illinois,
Green County.
ss.
Form No. 6673.'
The complaint and information of Richard
Roe of Carrollton in said county, made before
day of February, eighteen hundred and
fifty-three, at Perry in said county of
Houston, George IV. Ray, Jr., of said
county, did make a violent assault
upon the person of William F. Taylor,
of said county, with a wooden board
or piece of plank, which he, the said
George IV., in his hands then and there,
had and held, feloniously, wilfully and
maliciously, did strike and inflict divers
heavy blows, upon the arm and head
of him, the said William F. Taylor,
giving to the said William F. then and
there with the board or piece of plank
aforesaid, upon his head aforesaid, one
or more mortal wounds, of which
said striking and blows aforesaid, the
said Wm. F. Taylor did soon after die.
his
Jesse X Cooper.
mark
Sworn to and subscribed before me,
Feb. 8th, iSjj.
Wm. S. Moore, J. P."
A mere verbal inaccuracy will not vi-
tiate an affidavit where the meaning is
clear. Dickson v. State, 62 Ga. 583.
1. Need not conclude "contrary to
the form of the statute." Downing v.
State, 66 Ga. 160.
2. Attestation. An affidavit neither
attested by an officer authorized to ad-
minister oaths nor sworn to in open
court is void. Scroggins v. State, 55
Ga. 380.
Magistrates who may issue warrants
of arrest are enumerated in the statute.
3 Ga. Code (1895), 882.
A judge of the county court has the
power of a justice of the peace to issue
a warrant, upon affidavit made before
him, and of making preliminary ex-
aminations thereunder, and commit-
ting or binding over the accused to
the proper court, the affidavit being in
the form prescribed in 3 Ga. Code
(1895), 884.
3. Idaho. Rev. Stat. (1887), 7509
et seq., being identical with the pro-
visions of the California Penal Code.
See Form No. 6665, supra, and notes
thereto.
For formal parts of affidavits, gener-
ally, consult the title AFFIDAVITS, vol.
i, p. 548.
4. In the name of the state of Idaho is
the method of prosecuting criminal ac-
tions. Idaho Rev. Stat. (1887), 7353-
5. " Defendant " is the designation of
person prosecuted. Idaho Rev. Stat.
(1887), 7354-
6. Magistrates before whom complaint
may be made are enumerated in Idaho
Rev. Stat. (1887), 7511.
7. Illinois. Starr & C. Anno. Stat.
(1896), p. 1376, par. 529.
Complaint under oath is necessary to
the issuance of the warrant unless
the offense had been committed super
visum. Rafferty v. People, 69 111. in.
For formal parts of affidavits, gener-
ally, consult the title AFFIDAVITS, vol.
i, p. 548.
For examples of criminal complaints
in Illinois see Forms Nos. 2413, 4078,
4891.
936
Volume 5.
6674.
CRIMINAL COMPLAINTS.
6674.
Abraham Kent, Esq., one of the justices of the peace 1 in and for said
county, on the tenth day of March, \WQ, who being duly sworn,
upon his oath says, that John Doe* of Carrollton in the said county, 3
on the fifth day of March, iS96** did (Here give a statement of the
offense charged as being committed in words, figures and language accord-
ing to the forms under the particular titles)* and that the said Richard
Roe has just and reasonable grounds to believe, and does believe, the
said John Doe charged as aforesaid to be guilty thereof as herein set
forth. 6 He therefore prays that the said John Doe may be arrested
and dealt with according to law.
Richard Roe.
Subscribed and sworn to before me this the thirteenth day of March,
A. D. iS96.
Abraham Kent, Justice of the Peace.
Form No. 6674.'
(Homer's Ind. Stat. (1896), 1626.)
State of Indiana, \ 8
County of Posey. f "
1. Magistrates who may issue war-
rants of arrest are enumerated in the
statute, Starr & C. Anno. Stat. 111.
(1896), p. 1376, $ 528.
2. If the name of the defendant is an-
known to the complainant or judge or
justice of the peace, he may be desig-
nated by any name, description or
circumstances by which he can be
identified with reasonable certainty, and
if on arrest he refuses to disclose his
true name he may be tried and con-
victed by the name used in the war-
rant. Starr & C. Anno. Stat. 111. (1896),
P- 1377, P ar - 53 1 ; Willis v. People,
2 111. 399.
3. The county in which the crime was
committed should be alleged. People
v. Higgins, 15 111. no; Noe v. People.
39 111. 96. But the particular town or
locality need not be alleged. People v.
Higgins, 15 111. no.
If the name of the county is stated in
the margin, but omitted in the com-
plaint itself, verdict will cure the de-
fect. Nichols v. People, 40 111. 395;
Hanrahan v. People, 91 111. 142.
" In the county aforesaid " is sufficient
without repeating the name of the
county. Noe v. People, 39 111. 96.
4. the day of the month must be
stated. Whitesides v. People, Breese
(111.) 21.
5. Charging part of complaint, see
supra, note I, p. 932.
6. That the complainant has just and
reasonable grounds to believe such person
committed the offense must be stated.
Starr & C. Anno. Stat. 111. (1896), p.
1376, par 529.
Under a former and similar statute it
was held that the affidavit must state
that the accused committed the offense,
and that the prosecuting witness
suspects or has good reason to suspect
that the accused is guilty of such
offense. Housh v. People, 75 111. 487.
7. Indiana. Horner's Stat. (1896),
1625.
For formal parts of affidavits, gener-
ally, consult the title AFFIDAVITS, vol.
i, p. 548.
As to sufficiency of affidavit, see State
v. Gachenheimer, 30 Ind. 63.
For examples of complaints in Indiana
see Forms Nos. 2416, 3938.
See also State v. Cleveland, etc., R.
Co., 137 Ind. 75, for an illustration of
an affidavit which was held to have
been properly quashed for insuf-
ficiency.
8. Venue. In a criminal action,
based on an affidavit of information,
the affidavit sufficiently lays the venue,
where the caption shows the venue to
be in Perry county, in the state of In-
diana, while in the body of the affidavit
it is charged that the offense was com-
mitted " at said county." Hawkins .
State, 136 Ind. 630.
The affidavit must name with cer-
tainty the county and state in which
the offense was committed. State v.
Beebe, 83 Ind. 172.
937
Volume 5.
6675.
CRIMINAL COMPLAINTS.
6675.
Richard Roe^- swears (or affirms, as the case may be) that on or
about the tenth day of March, i8##, at said county, John Doe? as affiant
verily believes, 3 {Here state the offense)*
Richard Roe.
Subscribed and sworn to before me on this the eleventh day of
March, i896. 5
Abraham Kent, Justice. 6 (SEAL) ?
Form No. 6675.
The title of the action and the name of the
court to which it is presented is not
necessary in an affidavit in a criminal
prosecution, although the indictment or
information must contain the same.
Hawkins v. State, 136 Ind. 630.
1. Affiant's name need not appear in
the body or commencement of the affi-
davit when it appears that affiant signed
the same and that he was properly
sworn. Beller v. State, 90 Ind. 448.
2. Defendant's Name. In Levy v.
State, 6 Ind. 281, the information
charged the defendant by his surname,
alleging his Christian name to be un-
known. On motion to quash, it was
held that defendant was sufficiently
identified.
3. Made on information and belief may
be sufficient. State v. Buxton, 31 Ind.
67; Deveny v. State, 47 Ind. 208; State
v. Ellison, 14 Ind. 380; Franklin v.
State, 85 Ind. 99; Toops v. State, 92
Ind. 13.
4. Charging part of complaint, see
supra, note I, p. 932.
Variance as to dates between the affi-
davit and information, held to be fatal,
is discussed in Dyer v. State, 85 Ind.
525. Variance relating to dates, held
to be immaterial as not prejudicing
the substantial rights of the defend-
ant, is discussed in Trout <>. State, 107
Ind. 578; also in Rubush v. State, 112
Ind. 107.
5. The jurat would not be invalid if
no date whatever was written in it,
where the officer's act is sufficiently
authenticated by the certificate on per-
formance of the same. Ross v. State,
9 Ind. App. 35. In this case the year
in which the affidavit was subscribed
and sworn to is given as " 189-." Such
omission was clearly a clerical error
which the judge might have corrected
any time during the trial.
6. Made before a justice of the peace,
his official character may be sufficiently
designated by the abbreviations "J.
P." Hawkins v. state, 136 Ind. 630.
In Hosea v. State, 47 Ind. 180, the
jurat was in this form: "Subscribed
and sworn to this third day of Septem-
ber, 187^. A. S. Burr, J. P." and
was held to be sufficient.
In Brooster v. State, 15 Ind. 190, the
affidavit upon which the information
was based purported to have been made
in the county in which the case was
tried below before one who signed his
name as "J. C. Applegate " without
designating his office. Upon motion
to quash, it was held that the court be-
low must be presumed to have been
fully advised that J. C. Applegate was
authorized to administer oaths.
The word " clerk " attached to the sig-
nature of the attesting officer will be
presumed to indicate the official desig-
nation of the clerk of the circuit court.
Hipes v. State, 73 Ind. 39; Mountjoy v.
State, 78 Ind. 172; Choen v. State, 85
Ind. 209.
Before a Notary. May be sworn to
before a notary public. Hunter v.
State, 102 Ind. 428.
7. Seal. If an affidavit, made before
a police judge, has no seal attached to
the jurat, such omission, even if re-
quired, will not constitute a ground for
arrest of judgment. Rosenstein v.
State, 9 Ind. App. 290; Mountjoy v.
State, 78 Ind. 172.
For the effect of the omission of the
seal of the notary at the time of taking
the affidavit and attaching the same
after a motion in arrest is made, see
Miller v. State, 122 Ind. 355.
A defective affidavit vitiates the informa-
tion based thereon. State v. Beebe, 83
Ind. 171; Strader v. State, 92 Ind. 376;
Brunson v. State, 97 Ind. 95; Engle v.
State, 97 Ind. 122; State v. Downs, 7
Ind. 237.
8. Iowa. Code (1897), 5182, pro-
viding that a complaint in preliminary
proceedings before a magistrate may be
substantially in the form as in criminal
actions triable before a justice of the
peace. In section 5578, the form of the
938
Volume 5.
6676.
CRIMINAL COMPLAINTS.
6676.
(Iowa Code (1897), 5578.)
[State of Iowa, \ , 2
Harrison County. 1 ( SS 'J
The State of Iowa \
against y Before Justice Abraham Kent?
John Doe, defendant. 4 )
The defendant is accused of the crime {Here name the offense), for
that the defendant on the tenth day of March, A. D. iS96, at the
{Here name the city, town or township) in the county aforesaid {Here
state the act or omission constituting the off ense as in the indictment)* [con-
trary to the statute in such case made and provided and against the
peace and dignity of the state of Iowa.
Richard Roe.
Subscribed by the above named Richard Roe in my presence and
sworn to before me this the eleventh day of March, A. D. iS96.
Abraham Kent, Justice of the Peace.] 6
Form No. 6676.'
State of Kansas, \
Cowley County. [
Richard Roe, being duly sworn, on oath says that on the second day
of 'March, A. D. \W8, in the county of Cowley and state of Kansas,
information in actions triable before
justices of the peace is given as set out
in the text in Form No. 6675, except
the words and figures in [ ].
For example of complaint in bastardy
proceedings in this state see Form No.
3950.
For formal parts of affidavits, gener-
ally, consult the title AFFIDAVITS, vol.
i, p. 548.
A police officer may make the com-
plaint. Santo v. State, 2 Iowa 165.
The term " magistrate " includes any
judge of a superior, supreme or dis-
trict court throughout the state, a jus-
tice of the peace, mayor of cities and
towns, judges of police or other city
courts, and police and other special jus-
tices in cities and towns within their
respective counties. Iowa Code (1897),
8 5097-
1. Name of county must be stated.
Iowa Code (1897). 5577-
2. Words in [ ] are not given in the
statutory form.
3. Name of the justice must be given.
Iowa Code (1897), 5577.
4. Names of the parties, if the defend-
ants be known, and if not, then such
names as may be given them by the
complainant, must be stated. Iowa
Code (1897), 5577.
5. Statement of the acts constituting the
offense in ordinary and concise lan-
guage, and the time and place of the
commission of the offense, as near as
may be, must be stated. Iowa Code
(1897), 5577-
The facts constituting the offense
should be stated with as great precision
as in an indictment. State v. Bitman,
13 Iowa 485; State v. Allen, 32 Iowa
491; State v. Butcher, 79 Iowa no.
Merely stating the offense charged,
though in the language of the statute
itself, is insufficient. State v. Butcher,
79 Iowa no.
Charging an assault upon the person
of the informant, without naming the
person, but which is subscribed and
sworn to by him, has been held to be
good. State v. McKinley, 82 Iowa 445.
Charging part of complaint, see supra,
note I, p. 932.
6. Must be subscribed and sworn to, and
filed with the justice. Iowa Code
(1897), 5576.
If the informant subscribes and
swears to the affidavit at the end of the
information, it is sufficient. State v.
Devine, 4 Iowa 443.
Filing of Complaint. The justice must
file the complaint, and mark the time
of filing the same. Iowa Code (1897),
5579-
7. Kansas. 2 Gen. Stat (1897), p.
402, 35-
Ohio. Bates' Anno. Stat. (1897),
9 Volume 5.
6677. CRIMINAL COMPLAINTS. 6677.
John Doe did then and there unlawfully and feloniously [buy and
receive one hand saw, of the value of one dollar and fifty cents, one
monkey wrench, of the value of fifty cents, of the goods and chattels of
one David Miller, then lately before feloniously stolen, taken and
carried away, he the said John Doe then and there well knowing the
said goods and chattels to have been feloniously stolen, taken and
carried away as aforesaid], 1 contrary to the form of the statute in
such case made and provided, and against the peace and dignity of
the state of Kansas
Richard Roe.
Subscribed and sworn to before me this fifth day of March, A. D.
ittff.
Abraham Kent, Justice of the Peace. 2
Form No. 6 6 7 7 . 3
Commonwealth of Kentucky, ) Before Abraham Kent* Justice of the
Franklin County. j Peace.
On this tenth day of March, A. D. i89#, personally came before me,
Abraham Kent, a justice of the peace in and for said county, one
Richard Roe, who being duly sworn according to law, deposes and
says, that on the fifth day of January, \W6, at and in said Franklin
county aforesaid, one John Doe did commit a felony 5 (or the crime
of} to wit, {Here the nature of the offense should be fully specified, and
such a statement of the facts as will show probable cause for believing the
7133 et seq. See infra, Form No. 6693, The precise time when the offense was
and notes thereto. committed need not be stated where it
Oklahoma. Stat. (1893), 4958. See appears clearly to have been committed
infra. Form No. 6694, and notes within the limitations prescribed by
thereto. statute. State v. Barnett, 3 Kan. 250.
Wyoming. Stat. (1887), 3181. See Imperfect statement, or a statement in
infra, Form No. 6707, and notes very general terms in the complaint,
thereto. maybe cured by verdict, though it may
For formal parts of affidavits, gener- have been taken advantage of before
ally, consult the title AFFIDAVITS, vol. verdict. State v. Knowles, 34 Kan. 393.
I, p. 548. Amendment of complaint, see State -.
Must be in Writing. Prell v. Me- Hinkle, 27 Kan. 308; State v. Redford,
Donald, 7 Kan. 426. 32 Kan. 198.
1. The charging part of this complaint 2. Magistrates before whom the corn-
enclosed by [ ] is based upon the crimi- plaint may be made are enumerated in
nal complaint in State v. McLaughlin, the statute. 2 Kan. Gen. Stat. (1897), p.
35 Kan. 650, which was held to be suffi- 402, 35, p. 398, 7.
cient. See also supra, note I, p. 932. 3. Kentucky. Bullitt's Crim. Code
't For other forms of criminal com- (1895), 31.
plaints in Kansas, see Bailey v. Dodge, For formal parts of affidavits, generally,
28 Kan. 78; State v. Wahl. 35 Kan. consult the title AFFIDAVITS, vol. I, p.
608. 548.
Describing the offense in the language 4. Who are magistrates and police
of the statute is ordinarily sufficient in officers are enumerated in the statute,
the complaint. State v. Armell. 8 Kan. Bullitt's Crim. Code Ky. (1895), 26.
289; State v. Blakesley, 39 Kan. 153; 5. As to the penalty for the issuing of a
State v. Craddock, 44 Kan. 489. warrant in felony cases by any magis-
The same fullness of statement required trate without first having filed in the
in an information is not required in the office an affidavit fully specifying the
preliminary papers. State v. Baker, nature of the offense, see Bullitt's Crim.
57 Kan. 541. Code Ky. (1895), 31.
940 Volume 5.
6678.
CRIMINAL COMPLAINTS.
6679.
accused guilty of the offense charged.^-
Richard Roe.
Subscribed and sworn to before me by Richard Roe this the tenth
day of March, A. D. iS96.
Abraham Kent, Justice of the Peace.
i
Form No. 6678.*
State of Louisiana, \ In the First Justice's Court of the Fourth
Parish of St. Landry. f Ward. 3
Richard R<>e* being duly sworn, deposes and says that on or about
the tenth of March, i8P6, 5 and in the parish of St. Landry* one John
Doe* late of said parish, did {Here set out the statement of facts consti-
tuting the offense)* whereupon complainant prays that the said John
Doe may be arrested and dealt with according to law.
Richard Roe.
Sworn to and subscribed before me this the eleventh day of March,
i&96.
Abraham Kent, Justice of the Peace.
Form No. 6679.'
State of Maine.
Kennebec, ss.
To Abraham Kent, Esq., a trial justice within and for the county
of Kennebec*
Richard Roe, of Gardiner, in said county, on the tenth day of March,
in the year of our Lord one thousand eight hundred and ninety-six,
on behalf of said state, on oath, 9 complains that John Doe, of Gardi-
1. Charging part of complaint, see
supra, note i, p. 932.
2. Louisiana. Rev. Laws (1897),
1010.
For formal parts of affidavits, gener-
ally, consult the title AFFIDAVITS, vol. I,
P- 548.
3. Committing magistrates are justices
of the peace, district and parish judges.
La. Rev. Laws (1897), 1010 ; La.
Const., art. 126.
4. Name of Offender. Complaint before
a justice of the peace should specify
the name and surname of the offender
and also the person who may have
sustained the injury, where the offense
is of such a nature as to produce in-
jury to the person or property. La.
Rev. Laws (1897), 1017.
5. Time and Place. The complaint
must specify the month, day and year
and place when and where the offense
complained of was committed. La.
Rev. Laws (1897), $ 1017.
6. Charging part of complaint, see j-
fra, note I, p. 932.
Surplusage. The jurisdiction of a
committing magistrate is not affected
by the fact that in affidavits taken be
fore him, wherein facts are charged to
have been committed which constitute
a crime, an error has been made in the
statute as to the particular statute vio-
lated. The statement can be stricken
out as surplusage. State v. Judge, 44
La. Ann. 1093.
7. Maine. Rev. Stat. (1883). c. 132.
Compare also form set out in Me. Rev.
Stat. (1883), p. 315. See also Form No.
2409.
For formal parts of affidavits, generally,
consult the title AFFIDAVITS, vol. I, p.
548.
The complaint in preliminary proceed-
ings before any magistrate authorized
to issue processes is substantially the
same in form as in offenses triable by
trial justices. Me. Rev. Stat. (1883),
c. 133. 2, IS-
8. The officers who may issue criminal
processes are enumerated in the statute.
Me. Rev. Stat. (1883), c. 133, 2.
9. An officer, when it is the duty to
make complaints, may make them ac-
cording to his knowledge and belief.
Me. Rev. Stat. (1883), c. 133, 3.
941
Volume 5.
6680. CRIMINAL COMPLAINTS. 6681.
ner aforesaid, in said county, on the fifth day of March, \W6, at said
Gardiner, in said county of Kennebec, did (Here state the name of and
facts constituting the off ense)?- against the peace of said state, and con-
trary to the form of the statute in such case made and provided. 2
Richard Roe.
Kennebec, ss. On the tenth day of March, i&96, said Richard Roe
makes oath 3 that the above complaint by him subscribed is true.
Before me: Abraham Kent, Trial Justice.
Form No. 6 6 8 o . 4
Baltimore County, to wit:
The information of Richard Roe, of Baltimore, state of Maryland,
who first being duly sworn according to law saith on oath this tenth
day of March, i&96, before me Abraham Kent, one of the justices of
the peace of the state of Maryland in and for said county, that one
John Doe, of Baltimore, and state of Maryland, did, on the fifth day
of March, iS96, at and in said county aforesaid (Here state the facts
constituting the offense),** against the peace and dignity of the state of
Maryland.
Richard Roe.
Sworn and subscribed to before me this tenth day of March, iS96.
Abraham Kent, Justice of the Peace. 6
Form No. 6 6 8 i .'
Commonwealth of Massachusetts.
To the Justices of the Municipal Court of the Charlestown District,
holden in said district in the city of Boston for the transaction
of criminal business, within and for the county of Suffolk. 6
1. Charging part of complaint, see For formal parts of affidavits, generally,
supra, note i, p. 932. consult the title AFFIDAVITS, vol. I, p.
2. Technicalities for which a com plaint 548.
shall not be quashed or adjudged bad 5. Charging part of complaint, see
are enumerated in the statute. Me. supra, note i, p. 932.
Rev. Stat. (1883), c. 131, 12. 6. The complaint must be sworn to ; and
When an intent to defraud is necessary the complainants are sworn, if Chris-
to constitute an offense, it is sufficient tians, on the Four Evangelies, if Jews,
to allege generally an intent to defraud, on the Old Testament, as follows: " You
Me. Rev. Stat. (1883), c. 131, n. shall true answer make to such ques-
3. Affirmation. It is sufficient if the tions as shall be demanded of you. So
magistrate certify that the complainant help you God." i Chit. Cr. L. 31.
affirmed the truth of the complaint 7. Massachusetts. Pub. Stat. (1882),
without certifying that complainant c. 212, 14 et seq.
was conscientiously scrupulous of tak- For formal parts of affidavits, generally,
ing an oath. State v. Adams, 78 Me. consult the title AFFIDAVITS, vol. i, p.
486. 548.
4. Maryland. The statutes have Certain defects of form which shall not
said but little concerning the duties of vitiate complaints of this character are
justices of the peace in the suppression enumerated in Mass. Pub. Stat. (1882),
and punishment of crime: and we are c. 213, 16, 17.
left with the practice forms of England, 8. Magistrates who may issue crimi-
which were used by Maryland as a nal process are enumerated in the stat-
colony, which have undergone few, if ute. Mass. Pub. Stat. (1882), c. 212,
any, alterations since that period. 14; c. 154, 43 (applying to municipal
Latrobe's Just. Pr. (8th ed.), 1294. courts); c. 154, 12 (applying to police
See i Chit. Cr. L. 31. and district courts).
942 Volume 5.
6681.
CRIMINAL COMPLAINTS.
6681.
Richard Roe, 1 of Boston, in the county of Suffolk, on behalf of the
commonwealth of Massachusetts, on oath complains that John Doe* of
Boston, in the county of Suffolk, on the second day of March, in the
year of our Lord one thousand eight hundred and ninety-eight, at the
city of Boston, within the judicial district of said court, in the county
of Suffolk* with force and arms (Here state the offense and facts con-
For precedents of criminal complaints
see Com. v. Rice, 9 Met. (Mass.) 253;
Com. v. Robertson, 5 Cush. (Mass.)
438; Com. v. Lavonsair, 132 Mass, i;
Com. v. Smith, 141 Mass. 135; Com.
v. Carroll, 145 Mass. 403; Com. v. Mc-
Carthy, 145 Mass. 575; Com. v. Plaisted,
148 Mass. 375.
Address Justice of the Peace. In
Com. v. Melling, 14 Gray (Mass.) 388,
the complaint was addressed to "f. L.
Porter ; a Justice of the Peace," etc., and
the jurat was signed in like manner.
The complaint was sustained against
the objection that the description of the
justice of the peace before whom it was
made was not sufficient in merely giv-
ing the initials of his Christian name.
In Com. v. Taber, 155 Mass. 5, the
complaint was addressed to "George G.
Withington, justice of the peace in and
for the county of Bristol, and common-
wealth of Massachusetts, designated and
commissioned to issue warrants in
criminal cases."
District Court. A justice, or special
justice, may receive a complaint when
the court is not in session. Mass. Pub.
Stat. (1888), c. 154, 22, and his official
character is sufficiently shown by the
complaint which describes him as
"special justice of the district court,"
and by the words "special justice" ap-
pended to his signature to the jurat.
Com. v. Lynn, 154 Mass. 405.
Addressed to "Charles Thompson, Es-
quire, Associate Justice of the District
Court of Central Middlesex, sitting in
the absence of the justice," was held to
be sufficient. Com. v. De Voe. 159
Mass. 101.
Municipal Court. In Com. v . Certain
Intoxicating Liquors, 97 Mass. 601, the
complaint was addressed " To the jus-
tice of the Municipal Court of the city
of Boston, holden at said Boston for the
transaction of criminal business." It
was held that the addition of the words
" for the transaction of criminal busi-
ness " was not a misdescription of the
style of the municipal court.
Addressed to the " Municipal Court
of the Brighton District of the city of
Boston, holden in said Brighton District
for the prosecution of criminal business
within and for the county of Suffolk," is
sufficient. Com. v. Hoar, 121 Mass.
375-
Police Court. In Com. v. Brown, 158
Mass. 168, the complaint was addressed
" To the Justice of the Police Court of
Chelsea." This form was held to be
sufficient and proper even though a
special justice was sitting at the time
that it was actually laid before him.
1. Complainant's name need not appear
in the body of the complaint. Com. v.
Eagan, 103 Mass. 71.
The complainant, having been prop-
erly described in the first count of the
complaint, may be referred to as " said
complainant" in subsequent counts.
Com. v. Clapp, 16 Gray (Mass.) 237.
2. Name of Accused. A complaint
against " John Doe " containing several
counts, the first of which gives his
name in full, is sufficient though de-
scribing him in the subsequent counts
as " the said John," and this notwith-
standing the fact that the name of the
complainant may also be John. Com.
v. Hagarman, 10 Allen (Mass.) 401;
Com. v. Clapp, 16 Gray (Mass.) 237.
Place of defendant's residence need not
be stated where jurisdiction does not
depend upon place of residence. Com.
v. Taylor, 113 Mass. i.
A person unknown may be referred to
as such in a criminal complaint even
though his name might have been
ascertained. Com. v. Sherman, 13
Allen (Mass.) 248.
3. Statement of Place. Charging the
offense to have been committed " within
the judicial district of said court," etc.,
sufficiently states the venue where the
caption of the complaint is correct.
Com. v. Hoar, 121 Mass. 375; Com. v.
Clancy, 154 Mass. 128.
A statement that the offense was
committed " at Cambridge, Massa-
chusetts," is a sufficient statement that
the offense was committed within the
jurisdiction of the Third District Court
of Eastern Middlesex. Com. v. Carroll,
145 Mass. 403.
The place having been properly
designated in the first count of a com-
943
Volume 5.
6681.
CRIMINAL COMPLAINTS.
6681.
stituting if),^- against the peace of said commonwealth, and the form of
plaint may be referred to in subsequent
counts as " town and county afore-
said." Com. v. Clapp, 16 Gray (Mass.)
237-
In Com. v. Quin, 5 Gray (Mass.) 478,
the complaint had no caption and no
venue in the margin, but was in these
words: " To the Justice of the Police
Court within and for the city of Salem
in the county of Essex. John H. Newton,
constable of the city of Salem, in behalf
of the Commonwealth of Massachusetts,
on oath complains that Patrick Quin of
Salem in said county, on the sixteenth
day of June, A. D. 1853-, at Salem afore-
said, did sell to one John Wentworth a
certain quantity of intoxicating liquor,
to wit, * * * in evil example to all
others in like cases to offend, against
good morals, against the peace of said
commonwealth and the form of the
statute in such case made and pro-
vided. He therefore prays said de-
fendant may be apprehended and
brought before said court, and held to
answer to this complaint and further
dealt with relative to the same accord-
ing to law. J. H. Newton.
Essex, ss. The nineteenth day of June,
in the year of our Lord one thousand
eight hundred and fifty- .five, the afore-
said complainant made oath to the truth
of the foregoing complaint before said
court. Sam'IP. Andrews, Clerk." The
complaint was upheld as sufficiently
showing that the offense was committed
within the commonwealth of Massa-
chusetts.
Statement of Time Generally. A
complaint dated on the day on which
the offense is alleged to have been com-
mitted is sufficient. Com. v. Bush, 112
Mass 280. But a complaint charging
an offense to have been committed after
the date of the complaint is not suf-
ficient. Com. v. Doyle, no Mass. 103.
A complaint charging the commission
of an offense on the first day of August,
1860, and " from day to day to the day
of the date of receiving this complaint "
sufficiently charges the offense during
the whole time, where the complaint is
certified by the magistrate to have been
"received and sworn to on the twenty-
ninth day of August, in the year of our
Lord 1860." Com. v. Prates, i6Gray
(Mass.) 236.
For a clerical error with respect to
the allegation of time in a complaint to
a trial justice for keeping and main-
taining a common nuisance see Com.
v. Le Clair, 147 Mass. 539.
7^<? letters "A. D." preceding the
words expressing the year are suf-
ficiently certain, having acquired an
established use in the English lan-
guage. Com. v. Clark, 4 Cush. (Mass.)
59 6 -
The letters "A. D." are not neces-
sary where the date of the commission
of the offense is stated in figures. Com.
v. McLoon, 5 Gray (Mass.) 91.
Omission of the words " of our Lord,"
in a complaint charging an offense to
have been committed " on the four-
teenth day of December in the year one
thousand eight hundred and fifty-
eight," is immaterial. Com. v. Doran,
14 Gray (Mass.) 37; Com. v. Sullivan,
14 Gray (Mass.) 97.
Surplusage. Where the complaint
duly sets forth the time of the commis-
sion of the offense in words at length,
the addition of the date at the end of
the complaint, in figures, is mere sur-
plusage. Com. -v. Keefe, 7 Gray (Mass.)
332.
Use of Arabic numerals in designat-
ing the date of the commission of the
offense is sufficient. Com. v. Smith,
153 Mass. 97; Com. v. Hagarman, 10
Allen (Mass.) 401.
Year Omitted. In Com. v. Hutton,
5 Gray (Mass.) 89, the complaint to the
police court of New Bedford, signed by
Lewis G. Allen, alleged that the de-
fendant, at New Bedford, "on the third
day of June instant," etc., without
mentioning the year. The complaint
was held to be insufficient, notwith-
standing at the end thereof was ap-
pended the following ceitificate, signed
by the clerk of the police court: "Bris-
tol, ss. Received and sworn to on the
fourth day of June, A. D. iSj-j, before
said court."
1. Charging Part. In Com. v. Mell-
ing, 14 Gray (Mass.) 388, there was a
complaint wherein '''Alice Langley of
Newport" charged the defendant with
an unlawful sale of liquors "to said
Alice." The complaint was upheld
against the objection that in alleging
the sale to "said^/*V<r" it did not suf-
ficiently designate to whom the sale
was made.
That "complainant has probable cause
to suspect" that the accused has com-
mitted an offense is not sufficient to
sustain a conviction, though perhaps it
944
Volume 5.
6681.
CRIMINAL COMPLAINTS.
6681.
the statute in such case made and provided. 1
Richard Roe. 2
Suffolk, ss. Received and sworn to the fifth day of March, in the
year of our Lord one thousand eight hundred and ninety-eight, before
said court.
Charles S. Sullivan, Clerk. 3
is valid for the purpose of a prelimi-
nary hearing for commitment to an-
swer to an indictment in another court.
Com. v. Phillips, 16 Pick. (Mass.) 211.
Character " & " may be used in a
criminal complaint to express the con-
junction " and." Com. v. Clark, 4
Cush. (Mass.) 596.
Felony or Feloniously. It shall not
be necessary to allege in any complaint
that the offense charged is a felony or
felonious, and done feloniously, nor
shall a complaint be quashed or deemed
invalid by reason of the omission of
the words "felony," "felonious," or
" feloniously." Mass. Pub. Stat. (1888),
c. 210, 2.
Referring to or Reciting Statutes. A
criminal complaint is fatally defective
where the recitals of the title of a pub-
lic statute therein are so made as to
make it senseless. Com. v. A Man
whose Name is Unknown. 6 Gray
(Mass.) 489.
In Com. v. Washburn, 128 Mass. 421,
it was held that a complaint which did
not set forth facts necessary to consti-
tute an offense, except by reference to
a statute the year of which was errone-
ously given, would not support a con-
viction.
There is no variance in a complaint
which charged that defendant " in and
upon the body of Jos. T. Battles" did
make an assault, and "him the said
Joseph T. Battles did then and there
beat, bruise and wound," etc., "and
other wrongs to the said Joseph T. Bat-
tles then and there did," the court say-
ing: " We think that it appears by the
complaint itself that the name of the
person assaulted was Joseph T. Battles,
and that "Jos." is an abbreviation for
"Joseph." Com. v. Smith, 153 Mass. 97.
1. Must conclude "against the form
of the statute." Com. v. Gay, 5 Pick.
(Mass.) 44.
Concluding "against the form of the
statutes" may be good after verdict,
although the proceeding be one under
a single statute. Com. r. Hitchings, 5
Gray (Mass.) 482.
2. The complaint must be signed by the
complainant and sworn to before the
magistrate receiving it. Mass. Pub.
Stat. (1888), c. 212, 15.
May be signed by initials where it ap-
pears in the jurat who signed the com-
plaint. Com. v. Quin, 5 Gray (Mass.)
478.
A complaint made by "Samuel IV.
Richardson, City Marshal of Cambridge"
certified by the magistrate to whom it
was addressed to have been " received
and sworn to before said court," suffi-
ciently showed that it was signed and
sworn to by the complainant, although
it was merely signed " S. W. Richard-
son." Com. v. Wallace, 14 Gray (Mass.)
382.
Signed by Mark. Where the magis-
trate to whom the complaint was ad-
dressed certified that it was " taken and
sworn to," it was sufficient, though
complainant signed it by mark and
there was no attesting witness to the
mark. Com. v. Sullivan, 14 Gray
(Mass.) 97.
Failure to date the complaint is not
fatal where the jurat shows when a
complaint was made. Com. v. Blake,
12 Allen (Mass.) 188; Com. v. Mclvor,
117 Mass. 118.
3. Jurat Generally. The precision
required in an indictment or complaint,
which states the charge on which the
defendant is to be tried, is not neces-
sary in the jurat, which is a mere
certificate of the magistrate that the
requisite oath has been taken. Com.
v. Keefe, 7 Gray (Mass.) 332.
The words " received and sworn to " are
equivalent to an averment by the
magistrate that the signature and oath
were those of the complainant named
in the complaint. Com. v. Wallace, 14
Gray (Mass.) 383; Com. v. Sullivan, 14
Gray (Mass.) 98; Com. v. Keefe, 7 Gray
(Mass.) 332.
A magistrate's certificate that the
complaint was "taken and sworn"
before him is sufficient. Com. v. Ben-
nett, 7 Allen (Mass.) 533.
The jurat may be signed either by a
justice of the court or the clerk. Com.
v. McGuire, n Gray (Mass.) 459.
Before Clerk Surplusage. The
words "justice of the peace" are sur-
5 E. of F. P. 60.
945
Volume 5.
6682.
CRIMINAL COMPLAINTS.
6682.
Form No. 6682.'
plusage where the clerk signs his name
as "justice of the peace, clerk of said
court " Com. v. Certain Intoxicating
Liquors, 135 Mass. 519.
Before Clerk Pro Tempore. The at-
testation of the papers by "James B.
Stacey, clerk pro tern." is prima facie
sufficient without adding to his signa-
ture the cause of his appointment as
clerk pro tempore. Com. v. Connell, 9
Allen (Mass.) 488; Com. v. Gay, 153
Mass. 211.
Before Justice of the Peace. The de-
scription "justice of the peace author-
ized to issue warrants as aforesaid,"
appearing in the jurat referring back to
a correct caption in a complaint, is suf-
ficient. Com. v. Tabor, 155 Mass. 5:
Com. v. Peto, 136 Mass. 155; Com. v.
O'Hanlon, 155 Mass. 198.
Before Special Justice. The certifi-
cate need not state whether a complaint
was sworn to before the standing jus-
tice or a special justice, where it states
that it was "sworn to before said
court." Com. v. Wingate, 6 Gray
(Mass.) 485.
It sufficiently appeared that the special
justice was authorized to act in the case
where the complaint to the police court
of Chickopee was certified simply by
" George S. Taylor, Special Justice,"
where the warrant issued thereon on
the same day, and annexed to the com-
plaint, was attested thus: " Witness,
George S. Taylor, Esquire, Special Jus-
tice of this court, at said Chickopee, this
twenty-ninth day of July, in the year
of our Lord one thousand eight hun-
dred and fifty-eight. George S. J^aylor,
Special Justice, 'the standing justice
being absent from the town of Chickopee
and unable to attend." Com. v. Fitz-
gerald, 14 Gray (Mass.) 14.
It is to be presumed that the magis-
trate acted within the authority given
him by the statute, and that the court
was not in session, where the complaint
appears to have been properly received
by the special justice. His official
character is sufficiently shown by the
complaint which described him as
" special justice of the district court of
Hampshire" and by the words " special
justice" appended to his signature to
the jurat. Com. v. Lynn. 154 Mass.
405-
In Com. v. Conner, 155 Mass. 134,
the complaint was addressed to " the
Justice of the Second District of the court
of Essex, and purported have been " re-
ceived and sworn to before said court."
The jurat was signed " William
Smeath, Special Justice of said Court."
The record showed that the complaint
was received when the court was in
session, and no reason appearing for
the special justice acting, it was held
that the conviction in the superior
court was improper and the complaint
was dismissed.
Before Trial Justice. The jurat an-
nexed to the complaint was signed by
" Ic habod N. Luce, Trial Justice." It
was held that this signature involved
his signature as justice of the peace and
no separate designation of the inferior
office was necessary. Com. v. Mosher,
134 Mass. 226.
Figures. It is the uniform practice
in jurats to state the year in figures.
Com. v. Keefe, 7 Gray (Mass.) 332;
Com. v. Hagarman, 10 Allen (Mass.)
401.
Initials and Abbreviations. The fact
that the initals of the Christian name of
the justice of the peace are given in the
jurat is no ground for arresting judg-
ment. Com. -v. Melling,i4 Gray (Mass.)
388.
The abbreviation " Geo." may be as-
sumed to stand for " George." Com. v.
Taber, 155 Mass. 5.
Name of the state need not appear in
jurat if it appears in the complaint.
Com. v. Desmond, 103 Mass. 445.
Seal. The complaint need not be
under the seal of the court. Com. v.
De Voe, 159 Mass. 101.
1. Michigan. How. Anno. Stat.
(1882), 9454 etseq.
For examples of complaints in this
state see Forms Nos. 2414, 3941, 3953,
5157.
For formal parts of affidavits, gener-
ally, consult the title AFFIDAVITS, vol.
i, p. 548.
Form Need not be in Writing. The
law does not prescribe any form of the
criminal complaint in preliminary pro-
ceedings. Turner v. People, 33 Mich.
369. The complaint need not be in
writing. People v. Hare, 57 Mich. 505;
People v. Lynch; 29 Mich. 278; People
v. Bennett, 107 Mich. 430; People v.
Berry, 107 Mich. 256; People v. Bechtel,
80 Mich. 623; People v. Clark, 33 Mich.
120; Turner v. People, 33 Mich. 369.
Stereotyped forms of complaints en-
tirely printed, except as to names and
dates, are certainly not such docu-
ments as ought to be presented under
946
Volume 5.
6682.
CRIMINAL COMPLAINTS.
6682.
State of Michigan, )
County of Bay. x \
The complaint on oath" and in writing of Richard Rot* taken and
made before me, Abraham Kent? a justice of the peace of the city of
Bay City, in said county, upon the fifth day of March, A. D. iS98, who
being duly sworn says* that heretofore, to wit, on the second day of
M.irch, A. D. 1 898, at the city of Bay City* in the county aforesaid,
one John Doe, late of Bay City, in the county of Bay aforesaid, 6 [witn
forje and arm-; in and upon one Mary Carney, a female child of the
age of ten years and more, to wit, of the age of fourteen years, in the
peace of the people of the state of Michigan then and there being,
did make an assault with intent her, the said Mary Carney, by force
and against her will, then and there feloniously to ravish and to car-
nally know, and other wrongs to her, the said Mary Carney, then and
there did,] 7 contrary to the form of the statute in such case made
and provided, and against the peace and dignity of the people of the
state of Michigan.
Wherefore the said Richard Roe prays that the said John Doe may
be apprehended and held to answer this complaint, and further dealt
with in relation to the same as law and justice may require.
Richard Roe.
Taken, subscribed and sworn to before me the day and year first
above written.
Abraham Kent, Justice of the Peace.
a constitutional provision requiring
tiat no warrant should issue without
probable cause, and were disapproved
expressly by the court in Matter of
Way, 41 Mich. 299.
1. Omission of the name of county from
the venue in a complaint made to a
justice of the peace in a suit for an
offense beyond his jurisdiction to try,
and which is alleged to have been com-
mitted in said city, will not affect the
validity of the complaint. People v.
Kahler, 93 Mich. 625.
2. Any person is entitled to make a
criminal complaint. I Chit. Crim. L. 3.
3. Magistrates before whom the com-
plaints may be made are enumerated
in the statute. How. Anno. Stat. Mich.
(1882), 9454.
4. Mere Belief is Insufficient. The
complaint must set up the facts upon
the knowledge of the complainant.
People v. Heffron, 53 Mich. 527. See
Peoples. Hare. 57 Mich. 505; Haskins
v. Ralston, 69 Mich. 63; People v. Mc-
Lean, 68 Mich. 481.
5. Place of the commission of the offense
must be stated. People v. Gregory, 30
Mich. 371; People v. Millard, 53 Mich.
63-
6. A misnomer does not result from the
misspelling of the name of the accused,
provided it is idem sonans. People v.
Tisdale, i Dougl. (Mich.) 59; People
v. Mayworm, 5 Mich. 146.
Occupation, degree or residence of the
accused need not be stated. How.
Anno. Stat. Mich. (1882), 9523.
7. The charging part of this complaint,
indicated by the words and figures en-
closed by [ ], is taken from the com-
plaint in People v. Lynch, 29 Mich. 277,
in which case the complaint was ap-
proved. See also supra, note I, p.
932. For other precedents of com-
plaints of this character see Turner v.
People, 33 Mich. 363; People v. Lynch,
29 Mich. 277; Curnow v. Kessler,
(Mich. 1896) 67 N. W. Rep. 982; People
v. Bechtel, 80 Mich. 626. The facts
and circumstances necessary to consti-
tute the offense should be set forth with
certainty. Turner v. People, 33 Mich.
363; Wheaton v. Beecher, 49 Mich. 353.
The words "the crime of" were omitted
from the complaint. No objection was
made during the trial to their omission.
Had the attention of the court been
called to the defect, it might have been
amended, and for that reason it was
held that after verdict the omission
must be disregarded. People v. Suther-
land, 104 Mich. 468, citing Merwin v.
People, 26 Mich. 305.
947
Volume 5.
6683. CRIMINAL COMPLAINTS. 6684.
Form No. 6683.'
State of Minnesota, \
County of Chickasaw. \
Richard Roe, being first duly sworn 2 and examined on oath, makes
complaint and says, that John Doe did, on the tenth day of March,
A. D. i896, at the town of New Hampton, in said county and state
(Here set forth the facts constituting the offense)? contrary to the form
of the statute in such case made and provided, and against the peace
and dignity of the state of Minnesota, and prays that the said John
Doe may be arrested and dealt with according to law.
Richard Roe*
Subscribed and sworn to before me this fifteenth day of March,
A. D. I&96.
Abraham Kent* Justice of the Peace.
Form No. 6684.*
The State of Mississippi, \
Winston County. }
Before me, Abraham Kent," 1 a justice of the peace of the said county,
Richard Roe makes oath that on or about the tenth day of March,
A. D. \W8, in said county, John Doe did (Here state the facts constituting
the offense)* against the peace and dignity of the state of Mississippi.
Richard Roe.
Sworn to and subscribed before me ibis fifth day of March, i898.
Abraham Kent, J. P.
Statutory offenses should be described vided by him. Minn. Stat. (1894),
with certainty, and the omission of 7133.
any ingredient of such an offense will 3. Charging part of complaint, see
be fatal. Napman v. People, 19 Mich, supra, note i, p. 932.
355. 4. Must be signed by complainant.
1. Minnesota. Stat. (1894), 7132 et Minn. Stat. (1894), 7133.
seq. 5. To Whom Complaint may be made.
The provision in the Minnesota The judges of the several courts of
statute relating to preliminary exami- record in vacation, as well as in term
nations of persons accused of crime will time, and all justices of the peace,
authorize a magistrate to hold the ac- Minn. Stat. (1894), g 7132.
cused to await the action of the grand 6. Mississippi. Anno. Code (1892),
jury, even in a case where the evidence 1460 et seq. For form of affidavit charg-
does not show that any higher crime has ing a felony see Miss. Anno. Code
been committed than one over which (1892), 1491.
the justice himself has jurisdiction, Must be in Writing. Wilcox v. Will-
provided under the law the grand jury iamson, 61 Miss. 310.
may find an indictment for the offense. For formal parts of affidavits, generally,
State v. Sargent, (Minn. 1898) 73 N. W. consult the title AFFIDAVITS, vol. i, p.
Rep. 626. 548.
For exampleof complaint in this state 7. Conservators of the peace are enume-
see Form No. 3954. rated in the statute. Miss. Anno. Code
For formal parts of affidavits, gener- (1892^, 1460.
ally, consult the title AFFIDAVITS, vol. 8. May charge the accused with having
i, p. 548. committed an offense or being suspected
Must be reduced to writing by the of an offense. Miss. Anno. Code (1892),
magistrate receiving it. Minn. Stat. g 1461.
(1894), 7133. Charging part of complaint, seesufra,
2. Complainant shall be sworn and ex- note i, p. 932.
amined on oath, and any witness pro-
948 Volume 5.
6685. CRIMINAL COMPLAINTS. 6686.
Form No. 6685.'
State of Missouri, \ Before Abraham Kent, 2 a Justice of the Peace
County of Barton, f in and for said county and state.
Richard Roe, first being duly sworn 3 according to law, deposes and
says: That on the tenth day of March, in the year of our Lord one
thousand eight hundred and ninety-eight, at and in the said county of
Barton and state of Missouri aforesaid, one John Doe* did then and
there commit a felony, 5 as follows, to wit, {Here state fully and clearly
the facts constituting the offense charged), 6 contrary to the form of the
statute in such case made and provided, and against the peace and
dignity of the state.
Richard Roe.
Sworn to and subscribed before me in the county aforesaid this
tenth day of March, iS98.
Abraham Kent, Justice of the Peace. 7
Form No. 6686.
The State of Montana, plaintiff, ).-, , . , / fL
J ' ( Complaint for Burglary in the first
John Doe, defendant. )
State of Montana,
County of Missoula.
Upon this fifth day of March, A. D. iS98, before me, Abraham Kent,
a justice of the peace 9 within and for the township of Hell Gate, in the
county of Missoula, state of Montana, personally appeared Richara
Roe, who upon being duly examined and sworn, upon oath deposes
and says (continuing and concluding as in Form No. 6663). 10
1. Missouri. Rev. Stat. (1889), is presented. State v. Mullen, 52 Mo.
4009. 4021. 430. But the complaint must be veri-
For formal parts of affidavits, gen- fied. State v. Lewis, 70 Mo. App. 40.
erally, consult the title AFFIDAVITS, 8. Montana. Pen. Code (1895), $
vol. i, p. 548. 1372, 1590, et seq.
Should be in Writing. Mo. Rev. Stat. North Dakota. Rev. Codes (1895),
(1889), 4021. 7881, 7886.
The same technical accuracy is not re- Utah. Rev. Stat. (1898), 4604,
quired in a complaint as in an informa- 4610.
tion. State v. Morse, 55 Mo. App. 332. 9. Magistrates before whom complaint
Not using the statutory words but words may be made are enumerated in the
of equivalent import may be sufficient, statute.
State v. Morse, 55 Mo. App. 332. Montana. Pen. Code (1895), 1373.
2. Magistrates who may issue crimi- North Dakota. Rev. Codes (1895),
nal processes are enumerated in the 7758, 7885.
statute. Mo. Rev. Stat. (1889), 4008. Utah. Rev. Stat. (1898), 4608.
3. Must be on Oath. Mo. Rev. Stat. 10. Charging part of complaint, see
(1889), 4021. supra, note I, p. 932.
4. Name of the person accused must be Name of person accused, if known, must
stated. Mo. Rev. Stat. (1889), 4021. be stated.
5. That a felony has been committed Montana. Pen. Code (1895), 1590.
must be stated. Mo. Rev. Stat. (1889), North Dakota. Rev. Codes (1895),
4021. 7886.
6. Charging part of complaint, see Utah. Rev. Stat. (1898), 4610.
supra, note I, p. 932. County in which offense was com-
7. The oath need not be administered by mitted must be stated.
the magistrate to whom the complaint Montana. Pen. Code. (1895), 1590.
949 Volume 5.
6687.
CRIMINAL COMPLAINTS.
6687.
Form No. 6687.'
The State of Nebraska \
against V Complaint for (Here name the offense)?
John Doe. )
The State of Nebraska, \
County of Coif ax. \ SS '
The complaint and information of Richard Roe, of the county afore-
said, made in the name of the state of Nebraska, before me, the
undersigned, a justice of the peace 3 within and for said county, this
fifth day of March, A. D. \W8, who being duly sworn on his oath 4
says that John Doe^ 5 on the second fay of March, iS98, in the county
Qi-Colfax aforesaid then and there being, did then and there (Here
state the facts constituting the offense charged), 6 contrary to the form of
the statute in such case made and provided, and against the peace
and dignity of the people of the state of Nebraska.
Richard Roe?
Subscribed in my presence and sworn to before me thisyf/'M day
of March, iS98. Abraham Kent, Justice of the Peace. 8
North Dakota. Rev. Codes, (1895),
7886.
Utah. Rev. Stat. (1898), 4610.
General name of offense must be stated.
Montana. Pen. Code (1895), 1590.
North Dakota. Rev. Codes (1895),
7886.
Utah. Rev. Stat. (1898), 4610.
Name of person against whom, or
against whose property, the offense was
committed must be stated, if known.
Montana. Pen. Code (1895), 1590.
North Dakota. Rev. Codes (1895),
7886.
Utah. Rev. Stat. (1898), 4610.
Must be subscribed and sworn to by com-
plainant.
Montana. Pen. Code (1895), 1590.
North Dakota. Rev. Codes (1895),
7386.
Utah. Rev. Stat. (1898), 4610.
1. Nebraska. Comp. Stat. (1897),
7010.
A complaint in writing signed by the
complainant and sworn to before the
clerk of the district court within his
jurisdiction, and filed in the office of the
justice of the peace, would be sufficient
to require him to issue a warrant
thereon. State v. Lauver, 26 Neb.
757-
For formal parts of affidavits, gener-
ally, consult the title AFFIDAVITS, vol.
I, p. 548.
For precedents of complaints of this
character held to be sufficient see Ven-
num v. Huston, 38 Neb. 300; State v.
Lauver, 26 Neb. 757; Haunstine v.
State, 31 Neb. 112; Hill v. State, 42
Neb. 503.
Must be in Writing. Neb. Comp.
Stat. (1897), 7010.
2. The title is no part of the com-
plaint. White v. State, 28 Neb. 341.
3. Magistrates to whom complaints
are made are enumerated in the statute.
Neb. Comp. Stat. (1897), 6972.
The complaint must be made before
the proper magistrate in order to give
jurisdiction to make a preliminary ex-
amination. White v. State, 28 Neb. 341.
4. Must be upon Oath. Neb. Comp.
Stat. (1897), 7010; White v. State, 28
Neb. 341.
5. Must charge some person with the
commission of an offense against the
laws of the state. Neb. Comp. Stat.
(1897), 7010.
6. Must charge explicitly all that is
essential to constitute the offense.
Smith v. State, 21 Neb. 556.
In Brown v. State, 16 Neb. 659, a
complaint charging the commission of
a crime in positive terms was held not
to be invalid because affiant added that
he " verily believes defendant guilty."
As to the charging part of the com-
plaint, see Ex p. Eads, 17 Neb. 146;
Yates v. Kinney, 19 Neb. 283. See
also supra, note i, p. 932.
7. Must be signed by complainant.
Neb. Comp. Stat. (1897), 7010.
8. Clerk of court may administer oath.
State v. Lauver, 26 Neb. 757.
Nevada. The complaint in prelimi-
nary proceedings in criminal cases in
this state is provided for under statutes
having provisions identical with those
in Arizona. See supra, Form No. 6663,
and notes thereto.
950
Volume 5.
6688. CRIMINAL COMPLAINTS. 6689.
Form No. 6 688.'
To Abraham Kent, Justice of the Peace 2 for the County of Hillsborough:
Richard Roe of Hillsborough in the county of Hillsborough, com-
plains that John Doe 3 of Hillsborough in the county aforesaid, on the
second day of March, in the year of our Lord one thousand eight
hundred and ninety-eight, at Hillsborough aforesaid, in the county of
Hillsborongh, aforesaid, with force and arms {Here state offense charged
and the facts constituting the same), 4 contrary to the form of the statute
in such case made and provided, and against the peace and dignity
of the state.
Wherefore the said Richard Roe prays that the said John Doe may
be held to answer this complaint, and that justice may be done in
the premises.
Richard Roe*
Hillsborough, ss. March 5th, iS98, personally appeared Richard
Roe, and made oath that the above complaint by him subscribed is
in his belief true. 6
Before me, Abraham Kent, Justice of the Peace.
Form No. 6 6 8 9 . 7
The State of New Jersey, \
County of Bergen. [ ss '
Richard Roe, of the township of Blank, in the county of Bergen and
state of New Jersey, upon his oath complains that on the second day
of March, A. D. i&98, at said township of Blank, in the county and state
aforesaid, John Doe did {Here state facts constituting the offense
charged} ; wherefore the said Richard Roe prays that the said John
Doe may be apprehended and held to answer to this complaint, and
dealt with as law and justice may require.
Richard Roe.
Sworn and subscribed to this fifth day of March, iS98.
Before me, Abraham Kent, Justice of the Peace. 8
1. New Hampshire. Pub. Stat. 7. New Jersey. Gen. Stat. (1895), p.
(1891), c. 248 ft seq. 1119, I et seq. ; p. I2OO, II ft sea.
2. Must be addressed to a justice of the Must be in Writing. State v. Quigg,
peace or to a police court. N. H. Pub. 13 N. J. L. 293.
Stat. (1891), c. 248, 9. ' 8. Magistrates to whom the complaint
3. Name or description of accused must may be made are enumerated in the
be stated. N. H. Pub. Stat. (1891), c. statute. N. J. Gtn. Stat. (1895), p.
248, 9. 1119, I.
4. Name and description of offense must Jurat. In State v. Perth Amboy, 51
be given. N. H. Pub. Stat. (1891), c. N. J. L. 406, it was held that the char-
248, 9. ter of the city, the violation of the
Charging part of complaint, see supra, ordinance of which constituted the
note i, p. 932. ground of complaint, did not require
Distinct and separate offenses must not the oath and attestation to the com-
be included in one count of the same plaint to be made in writing prior to the
complaint. State v. Fowler, 28 N. H. arrest, and that consequently the jurat
184. need not have been signed by the police
5. Must be signed by complainant. N. magistrate until the return day of the
H. Pub. Stat. (1891), c. 248, 9. summons.
6. Must be under Oath. N. H. Pub. New Mexico. The complaint in
Stat. (1891), c. 248, 9. writing in preliminary proceedings in
951 Volume 5.
6690.
CRIMINAL COMPLAINTS.
6691.
Form No. 6690 .'
To Abraham Kent, one of the Justices of the Peace in and for the
county of Suffolk, state of New York?
Suffolk, ss.
Richard Roe, of the town of Huntington, in the county of Suffolk,
state of New York, being duly sworn and examined, makes complaint
and on oath 3 says: (Continuing and concluding as in Form No. 6663.)
Form No. 6691.*
this state is provided for by New Mex-
ico Compiled Laws (1884), 2448, and
seems to be in all material respects
similar to the complaint provided for
in such proceedings under the Arizona
statute. See supra, Form No. 6663,
and notes thereto.
1. New York. Cook's Code Crim.
Proc. (1891), 145 et scq. The statutory
provisions in New York are identical
with those \nArieona. Consult Form
No. 6663, supra, and notes thereto.
For the formal parts of affidavits, gen-
erally, consult the title AFFIDAVITS,
vol. i, p. 548.
For example of such complaint in this
state see Form No. 2394.
The same technicality and strictness is
not called for with respect to the com-
plaint as is necessary in the case of an
indictment. People v. Robertson, 3
Wheel. Cr. Cas. (N. Y. Gen. Sess.) 180.
Need not be reduced to writing prior to
the issuance of warrant. Payne v.
Barnes, 5 Barb. (N. Y.)46s; Matter of
Boswell, 34 How. Pr. (N. Y. Ct. Sess.)
347; Sleight v. Ogle, 4 E. D. Smith (N.
Y.) 445. Compare, however, People v.
Fuerst, 13 N. Y. Misc. Rep. (Queens
County Ct Sess.) 304.
2. Magistrates to whom the complaint
may be made are enumerated in the
statute. Cook's Code Crim. Proc. (N.
Y.), 147-
3. Hade on information and belief,
whether by an officer or other person, is
insufficient. Matter of Blum, 9 Misc.
Rep. (N. Y. Supreme Ct.) 571. The
information in this case concluded as
follows: " Deponent further says that
he makes this complaint upon informa-
tion and belief as a police officer of the
city of Brooklyn."
Precedent. In Pratt v. Bogardus, 49
Barb. (N. Y.Jgi, the complaint was as
follows: "Albany County, ss: Stephen
D. Van Natta, of the town of Knox, in
the said county, being duly sworn and
examined, makes complaint and says,
that on or about the first day of June,
1 864, at the town of Knox, aforesaid,
Ferrand T. Pratt did designedly, and
by false pretense, obtain from him one
sulky, of the value of $jo, by falsely
stating and representing to him that his
sulky was hard to ride in, and that he
was going to Albany city, and that
he would leave his sulky with him, the
said Stephen D. Van Natta, and would
return it the next week, whereas, in
fact, he did not so return it, but took it
to Albany and had the same shipped to
Fort Plain, with intent to cheat and
defraud the said Stephen D. Van Natta.
Stephen D. Van Natta.
Sworn and subscribed before me \
this idth day oijuly, 1864. f
. N. Bogardus,
Justice of the Peace."
It was held that this complaint was
sufficient to call upon the justice to ex-
ercise his judgment in determining the
propriety of issuing a warrant, and,
having done so in good faith, to protect
him with respect thereto.
4. North Carolina. Code (1893),
"33-
Complaint under oath is necessary to
the issuance of the warrant unless the
offense had beep committed supervision.
Welch v. Scott, 5 Ired. L. (27 N. Car.)
72.
For formal parts of affidavits, gener-
ally, consult the title AFFIDAVITS, vol.
i, p. 548.
For precedents of complaints before a
justice see State v. Griffis, 117 N. Car.
709; State v. Taylor, 118 N. Car. 1262;
State v. Norman, no N. Car. 485; Dur-
ham v. Jones, 119 N. Car. 268.
Complaint may be amended in the dis-
cretion of the justice. N. Car. Code
(1883), 908; State v. Norman, no N.
Car. 484. And this discretionary power
is not reviewable on appeal. State v.
Taylor, 118 N. Car. 1262.
952
Volume 5.
6692. CRIMINAL COMPLAINTS. 6693.
State of North Carolina. )
Mecklenburg County, f Before Ab ^^ m Kent a justice of the
Dewese Township. )
The State of North Carolina \
against
John Doe. )
North Carolina. )
v QC
Mecklenburg County, f
Richard Roe, of Davidson, in the county of Mecklenburg, state of
7WM Carolina, being duly sworn on this ./f/'M day of March, i8P,
upon oath deooses and says: (Continuing and concluding as in Form
No. 6663.)
Form No. 6692.-
The State of North Dakota, plaintiff, ) ~
aea i nst I Complaint for Burglary in the
John Doe, defendant. } First Degree.
The State of North Dakota, \
County of Cass. \ SS>
Upon this//M day of March, A. D. \W8, before me, Abraham Kent,
a justice of the peace 3 within and for the county of Cass, state of
North Dakota, personally appeared Richard Roe, who being duly
examined and sworn upon oath deposes and says : (Continuing and
concluding as in Form No. 6663.)
Form No. 6693.*
(Bates' Anno. Stat. Ohio (1897), 7134.)
The State of Ohio, Vinton County, ss.
1. Magistrates to whom the complaint a criminal complaint, filed against the
may be made are enumerated in the accused with an examining magistrate,
statute. N. Car. Code (1883), 1132. after alleging time and place, desig-
Must conclude "against the form of nated the offense in general language,
the statute." State v. Lowder, 85 N. giving its name, and in addition thereto
Car. 565. set out such of the facts and circum-
2. North Dakota. Rev. Codes (1895), stances constituting the offense as
7881, 7886, being similar to, if not fairly apprises a person of average in-
identical with, the statutory provisions telligence of the nature of the accusa-
relating to criminal complaints in pre- tion against him, it was held sufficient
liminary proceedings in Montana. See to authorize a state's attorney to file an
Form No. 6686, supra, and notes information against the accused for the
thereto. same offense. State v. Barnes, 3 N.
For formal parts of affidavits, gener- Dak. 131.
ally, consult the title AFFIDAVITS, vol. 3. Magistrates before whom criminal
i, p. 548. complaints may be made are enume-
For a precedent of a complaint of this rated in the statute. N. Dak. Rev.
character see State v. Barnes, 3 N. Codes (1895), 7758. 7885.
Dak. 131. 4. Ohio. Bates' Anno. Stat. (1897;,
The same technicality and care neces- 7133 et seq.
sary in framing indictments and infor- Kansas. 2 Gen. Stat. (1897), p. 402,
mations is not necessary in drawing a 35. See supra, Form No. 6676, and
complaint. State v. Barnes, 3 N. Dak. notes thereto.
131. Oklahoma. Stat. (1893), 4958. See
Under 8, c. 71, Laws of 1890, where infra. Form No. 6694, and notes thereto.
953 Volume 5.
6694. CRIMINAL COMPLAINTS. 6695.
Before me, Abraham Kent?- [a justice of the peace in and for said
county,] 2 personally came Richard Roe, who being duly sworn accord-
ing to law, deposes and says, that on or about the second day of
March, iS98, at the county of Vinton, one John Doe {Here describe
the offense committed as nearly according to the nature thereof as the case
will admit). 3
Richard Roe.
Sworn to and subscribed before me \h\sfifth day of March, iS98.
Abraham Kent, Justice of the Peace.
Form No. 6694 .*
Territory of Oklahoma, Oklahoma County, ss.
Richard Roe, being duly sworn, on oath says, that on the second day
of March, A. D. iS98, in the county of Oklahemasuid. territory of Okla-
homa, John Doe did {continuing and concluding as in Form No. 6676).
Form No. 6695.*
Before Abraham Kent, Justice of the Peace within and for Blank
Precinct, Multnomah County, State of Oregon. 6
The State of Oregon, plaintiff, }
against > Complaint for Burglary.
John Doe, defendant. )
John Doe is accused by Richard Roe by this complaint of the crime
of (continuing and concluding as in Form No. 6716, charging an offense
not within the jurisdiction of the justice of the peace],
Wyoming. Rev. Stat. (1887), 3181. Kansas. 2 Gen. Stat. (1897), p. 402,
See infra, Form No. 6707, and notes 35. See supra. Form No. 6676, and
thereto. notes thereto.
For formal parts of affidavits, gener- Ohio. Bates' Anno. Stat. (1897),
ally, consult the title AFFIDAVITS, vol. r, 7133 et seq. See supra. Form No. 6693,
p. 548. and notes thereto.
For another form of an affidavit which Wyoming. Rev. Stat. (1887), 3181.
may be varied to suit the nature of any See infra, Form No. 6707, and notes
particular case see Bates' Anno. Stat. thereto.
Ohio (1897), 7135. For the formal parts of affidavits, gen-
For examples of complaints in this erally, consult the title AFFIDAVITS, vol.
state see Forms Nos. 2415, 3945. I, p. 548.
Complaint under oath is necessary to Magistrates to whom the complaint
the issuance of the warrant unless the may be made are enumerated in the
offense had been committed super statutes. Okla. Stat. (1893), 4957.
visum. Eichenlaub v. State, 36 Ohio 5. Oregon. Hill's Anno. Laws (1892),
St. 142. 1546, 1549, being similar to, if not
May be upon Affirmation. Eichenlaub identical with, the provisions relating
v. State, 36 Ohio St. 142. to criminal complaints in preliminary
1. Magistrates to whom complaints of proceedings in Arizona. See supra,
this character may be made are enu- Form No. 6663, and annotations thereto,
merated in the statute. Bates' Anno. For the formal parts of affidavits, gen-
Stat. Ohio (1897), 7106. erally, consult the title AFFIDAVITS, vol.
2. The words in [ ] do not appear in I, p. 548.
the form set out in the statute. 8. Magistrates to whom complaints of
3. Charging part of complaint, see this character may be made are enu-
supra, note i, p. 932. merated in the statute. Hill's Anno.
4. Oklahoma. Stat. (1893), 4958, Laws Oregon (1892), 1548.
and notes thereto.
954 Volume 5.
6696.
CRIMINAL COMPLAINTS.
6697.
Form No. 6696.'
Chester County, ss.
Personally appeared before me, one of the justices of the peace in
and for the county aforesaid, this//M day of March, in the year of
our Lord one thousand eight hundred and ninety-eight, Richard Roe, of
the township of Blank, in said county of Chester, and state of
Pennsylvania, who being first duly sworn according to law on oath
deposes and says that on the second day of March, in the year of our
Lord one thousand eight hundred and ninety-eight, at the township of
Blank aforesaid, in the county and state aforesaid, John Doe did
{Here state the facts constituting the offense charged}* [contrary to the
act of assembly in such case made and provided.]*
Richard Roe.
Sworn and subscribed to before me thisy?/M day of March, iS98.
Abraham Kent, Justice of the Peace.
Form No. 6697.*
(R. I. Gen. Laws (1896), c. 102, 22.)
To John Marshall, Esquire, justice (or clerk, as the case may be)
of the district court of the sixth judicial district, 5 Richard Roe, chief of
the police (or special constable, or other person, as the case may be)
of the town of North Providence, on oath complains in the name and
behalf of the state, that at said North Providence 6 on the secondly of
1. Pennsylvania. Complaint is the
name used in criminal proceedings to
designate the allegation made to the
proper officer that some person, whether
known or unknown, has been guilty of
the designated offense, and a request
that the offender may be punished.
The complaint should be made on oath
or affirmation and reduced to writing
by the magistrate. It should be cor-
rectly dated, should state the name of
the place where it is taken, the name
and style of the informant, the name of
the magistrate, and, if possible, the
name of the offender, the time of the
commission of the offense, a descrip-
tion of the offense, and the place where
the offense was committed. Grayd.
Forms (1845 , p. 189. Compare Form
No. 6680, supra, and notes thereto.
For formal parts of affidavits, generally,
consult the title AFFIDAVITS, vol. i,
P- 548.
Complaint under oath i necessary to the
issuance of the warrant, unless the
offense had been committed super
visum. Conner v. Com., 3 Binn. (Pa.)
42.
2. Charging part of complaint, see
supra, note I, p. 932.
3. Instead of the words in [ ] insert
"against the peace and dignity of the
Commonwealth of Pennsylvania," if
the offense is a common-law crime.
4. Rhode Island. Gen. Laws (1896),
c. 229.
For formal parts of affidavits, gen-
erally, consult the title AFFIDAVITS,
vol. i, p. 548.
Must be Keduced to Writing. R. I.
Gen. Laws (1896), c. 229, 10.
A justice or clerk of the district court
may, by an amanuensis, reduce the
complaint to writing. The work be-
comes that of the justice, or the clerk,
as the case may be, when he swears
the complainant and issues the war-
rant. State v. Guinness, 16 R. I. 401.
5. Magistrates to whom the complaint
may be made are enumerated in the
statute. R. I. Gen. Slat. (1896), c. 229.
A criminal complaint beginning thus.
"To James IV. Black-wood, Esquire,
Justice of the District Court of the
Sixth Judicial District," the jurat to
which shows that it was subscribed
and sworn to before William B. Beach,
justice of the district court of the sixth
judicial district, was held to be not
fatally defective, as the court might
take judicial notice that William B.
Beach was at the time of the date of
the complaint justice of the district
court of the sixth judicial district. State
v. Wright, 16 R. I. 518.
6. An allegation of place, using the
words " at Tiverton, in the county of
Newport," raises the necessary infer-
955
Volume 5.
6698. CRIMINAL COMPLAINTS. 6699.
March, A. D. i &98, with force and arms, John Doe of said North Prorn-
dence {Here state fully the facts constituting the offense charged}, 1 against
the statute, and the peace and dignity of the state. Wherefore, he
prays advice, and that process may issue, and that said respondent
may be apprehended and held to answer to this complaint, and be
further dealt with relative to the same according to law.
Richard Roe.' 2 '
Dated at North Providence, this fifth day of March, iS98.
Providence, sc.
In North Proindence in said county on this fifth day of March, iS98,
before me personally appeared Richard Roe and made oath that the
statements made in the complaint by him above subscribed are true.
Abraham Kent, Justice of the Peace. 3
> ss.
Form No. 6 6 9 8 . 4
The State of South Carolina,
County of Sumter.
Personally appeared before me, Abraham Kent, one of the magis-
trates 6 within and for the county of Sumter, state of South Carolina,
thisy^/M day of March, i898, Richard Roe, of Sumter, in said county
and state, who being duly sworn on oath 6 complains and says: (Con-
tinuing and concluding as in Form No. 6668. ) 7
Form No. 6699.*
The State of Scuth Dakota, plaintiff, ) Information>r urglary in the
First Degree.
The State of South Dakota, ) gg
County of Hughes. [
Upon this fifth day of March, A. D. iS98, before me, Abraham Kent,
ence that the town of Tiverton is meant, of the offense. A sworn information,
State v. Lake, 16 R. I. 511. setting forth the charge " plainly and
1. Charging part of complaint, see substantially," so that the accused
supra, note i, p. 932. might understand the nature of the
2. Must be signed by the complainant, offense, seems to have been only what
R. I. Gen. Laws (1896), c. 229, 10. was intended by the statute. McCon-
3. Verification. Complainant must nell v. Kennedy, 29 S. Car. 180; 2 S.
be examined under oath. R. I. Gen. Car. Rev. Stat. (1893), p. 268, 19.
Laws (1896), c. 229, 10. May be amended at any time before
4. South Carolina. 2 Rev. Stat. trial. 2 S. Car. Rev. Stat. (1893), p. 268,
(1893). p. 268, 19. 19.
For the formal parts of affidavits, gen- Previous affidavit and warrant are not
erally, consult the title AFFIDAVITS, necessary in order that the state solici-
vol. i, p. 548. tor may present a bill to the grand
5. Magistrates to whom complaints jury. State v. Bowman, 43 S. Car. 108.
may be made are enumerated in the Need not conclude " against the form
statute. 2 S. Car. Rev. Stat. (1893), c. of the statute." State v. Brown, 14 S.
II. Car. 383.
6. Must be under Oath. 2 S. Car. 8. South Dakota. Dak. Comp. Laws
Rev. Stat. (1893), p. 268, 19; State v. (1887), 7117, 7120^ seq.
Wimbush, 9 S. Car. 309. For formal parts of affidavits, gener-
7. No particular formality or technical ally, see the title AFFIDAVITS, vol. i,
accuracy is necessary in the statement p. 548.
956 Volume 5.
6700.
CRIMINAL COMPLAINTS.
6701.
a justice of the peace 1 within and for the county of Hughes, state
of South Dakota, personally appeared Richard Roe, who being duly
examined and sworn upon oath 2 deposes and says: (Continuing and
concluding as in Form No. 6663. )
Form No. 6700.*
State of Tennessee, Maury County.
Personally appeared before me, Abraham Kent, a justice of the
peace 4 within and for the said county of Maury, this fifth day of
March. iS98, one Richard Roe, oi Columbia, in said county of Maury,
who being duly sworn according to law on oath alleges and says:
(Continuing and concluding as in Form No. 6663. )
Form No. 6701.*
The State of Texas,
County of Freestone.
Before me, the undersigned authority, 6 on thisyf/M day oi March,
i898, personally appeared Richard Roe? who, after being by me duly
1. Magistrates to whom information
may be made are enumerated in the
statute. Dak. Comp. Laws (1887),
7119.
2. Must be verified by oath or affirma-
tion. S. Dak. Comp. Laws (1887),
7117, 7120 el seq.
3. Tennessee. Code (1896), 6973
et seq., being similar to and in many
respects identical with the statutory
provisions relating to criminal com-
plaints in preliminary proceedings in
Alabama and Arizona. See supra, Forms
Nos. 6662, 6663, and notes thereto.
For the formal parts of affidavits, gen-
erally, consult the title AFFIDAVITS,
vol. i, p. 548.
4. Magistrates to whom the complaint
may be made are enumerated in the
statute. Tenn. Code (1896), 6974.
5. Texas. Code Crim. Proc. (1895),
art. 255 et seq.
For the formal parts of affidavits, gen-
erally, consult the title AFFIDAVITS,
vol. i, p. 548.
A complaint is prerequisite to an infor-
mation. Dominguez v. State, (Tex.
Crim. App. 1896) 35 S. W. Rep. 973;
White v. State, (Tex. Crim. App. 1896)
35 S. W. Rep. 391.
6. Magistrates authorized to issue
criminal processes are enumerated in
the statute. Tex. Code Crim. Proc.
(1895), art. 41.
Complaint may be sworn to before
the county attorney or his assistant.
Kelly v. State, (Tex. Crim. App. 1896)
38 S. W. Rep. 39.
Complaint shall be deemed sufficient,
without regard to the form, if it has
the requisites mentioned in the statute.
Anderson v. State, 34 Tex. Crim. Rep.
96; Brown v. State, 'ii Tex. App. 451;
Clark v. State, 23 Tex. App. 260.
Must be in Writing. Tex. Code
Crim. Proc. (1895), art. 257.
7. Name of the affiant need not appear
in the body of the complaint provided
he signs it and swears to it. Upton v.
State, 33 Tex. Crim. Rep. 231.
In Malz v. State, (Tex. Crim. App.
1896) 34 S. W. Rep. 267, it appears
that the complaint originally read in
the beginning part " personally ap-
peared before the undersigned author-
ity R. L. Winfrey" and was signed and
appears to have been sworn to by Will-
iam Jackson. Upon motion to quash
on the ground that the affidavit was
made by R. L. Winfrey and not by
William Jackson, the county attorney
filed an answer showing that the com-
plaint as shown by the affidavit was
signed and sworn to by William Jack-
son, and asked leave to amend the
complaint by erasing the name of "^.
L. Winfrey" and inserting "William
Jackson." It was held that it was com-
petent to erase the name of Winfrey
and insert that of Jackson on the
theory that it was not necessary in
the body of the complaint to state the
name of the party making the com-
plaint or the affidavit.
That it was made by a credible person
is not necessary to be stated in the com-
957
Volume 5.
6701.
CRIMINAL COMPLAINTS.
6701.
sworn on his oath deposes and says, 1 that John Doe," 2 - in the county
of Freestone, and state of Texas, heretofore, to wit, on or about
the second day of March, \W8? did then and there {Here name the
offense charged, and state with particularity the facts constituting the same)*
contrary to the forms of the statute in such cases made and pro-
vided, and against the peace and dignity of the state of Texas. 5
Richard Roe*
Sworn to and subscribed before me this fifth day of March, iS98.
Abraham Kent, Justice of the Peace,
Precinct No. 6, Freestone County, Texas." 1
plaint. Dodson v . State, 35 Tex. Crim.
Rep. 57.
An officer need not make the com-
plaint. Lindley v. State, (Tex. Crim.
App. 1898) 44 S. W. Rep. 165.
1. That affiant " has reason to believe
and does believe " is equivalent to stat-
ing in the language of the statute that
affiant has " good reason to believe and
does believe." Dodson v. State, 35
Tex. Crim. Rep. 571.
That the affiant " has good reason to
believe and does believe " that the ac-
cused has committed the offense
charged is sufficient. Clark v. State,
23 Tex. App. 260; Brown v. State,
II Tex. App. 451; Anderson v. State, 34
Tex. Crim. Rep. 96; Staley v. State,
(Tex. Crim. App. 1895) 29 S. W. Rep.
272; Dean v. State, (Tex. Crim. App.
1895) 29 S. W. Rep. 477.
In Brown v. State, n Tex. App. 451,
affiant stated that "to the best of his
knowledge and belief" the alleged
offense was committed, which was held
to be sufficient.
2. Name of accused must be stated, if
known; when not known, the complaint
must give some reasonably definite de-
scription of him. Tex. Code Crim.
Proc. (1895), art. 257. Describing ac-
cused as "Mrs. Beaumont" has been
decided not a sufficient compliance
with this provision of the statute.
Beaumont v. Dallas, 34 Tex. Crim.
Rep. 68.
3. Time and place of the commission
of the offense must be stated as
definitely as can be done. Tex. Code
Crim. Proc. (1895), art. 257.
Charging an offense to have been com-
mitted on a date subsequent to the
making of the complaint vitiates the
complaint. Womack v. State, 31 Tex.
Crim. Rep. 41; Jennings v. State, 30
Tex. App. 428.
4. Name of the offense must be stated.
Tex. Code Crim. Proc. (1895), art. 257.
Charging part of complaint, see supra,
note i, p. 932.
That an offense against the laws of the
state has been committed, or that affiant
has good reason to believe and does
believe that the accused has committed
such an offense, must be stated. Tex.
Code Crim. Proc. (1895), art. 257.
5. Need not conclude "against the
peace and dignity of the state." Curry
v. State, (Tex. Crim. App. 1893) 24 S.
W. Rep. 516.
6. Must be signed by the affiant, if he
can write his name; otherwise he must
place his mark at the foot of the com-
plaint. Tex. Code Crim. Proc. (1895),
art. 257.
7. The want of a jurat to a complaint is
fatally defective. Neiman v. State, 29
Tex. App. 360.
That the jurat was, in fact, made on
May 2, 1889, instead of April 2, 1889,
as written therein, is a mere clerical
error, which does not vitiate the com-
plaint. Allen v. State, (Tex. App. 1890)
13 S. W. Rep. 998.
A jurat to a complaint must be
signed officially by the officer adminis-
tering the oath. A jurat signed " Wm.
Greer,J. P" was held invalid in Nei-
man v. State, 29 Tex. App. 360, on the
theory that such signature did not
designate properly the official charac-
ter; wherein it was intimated, however,
that the signature would have been
sufficient in the following words, " (Vm.
Greer,J. P. Prec. No. , W. C."
A complaint was held to be fatally
defective to which was appended a
jurat which did not show the official
character of the officer before whom
the complaint was verified. Robert-
son v. State, 25 Tex. App. 529. The
jurat in that case was signed " W. H.
Edell," and following this name were
some pen marks which resembled the
letter " W."
In Mican v. State, (Tex. App. 1892)
19 S. W. Rep. 762, the record showed
that the complaint was sworn and
subscribed before one "John M. Keith,"
but there were no other words desig-
958
Volume 5.
6702.
CRIMINAL COMPLAINTS,
6703.
Form No. 6702.'
The State of Utah, plaintiff, \
against I Complaint for Burglary.
John Doe, defendant. )
The State of Utah, }
County of Utah. f ss>
Upon this fifth day of March, i W8, before me, Abraham Kent, a
justice of the peace 2 of Provo precinct within and for the said county
of Utah, in the state of Utah aforesaid, personally appeared Richard
Roe, who being duly examined and sworn by me upon oath deposes
and says: 3 (Continuing and concluding as in Form No. 6663. ) 4
Form No. 6703.'
State of Vermont, ) To Abraham Kent, Esq., a justice of the
County of Chittenden, ss. j peace within and for the county of Chit-
tenden, state of Vermont, conies Richard Roe, 6 a grand juror 7 for the
nating his official capacity. Reviewing
Neiman v. State, 29 Tex. App. 360, the
complaint was held to be sufficient.
1. Utah. Rev. Stat. (1898), 4604
et sea,., being similar to, if not identical
with, the provisions relating to crimi-
nal complaints in preliminary proceed-
ings in Montana and North Dakota.
See supra, Forms Nos. 6686, 6692, and
notes thereto.
For the formal parts of affidavits, gen-
erally, consult the title AFFIDAVITS,
vol. i, p. 548.
2. Magistrates to whom the complaint
may be made are enumerated in the
statute. Utah Rev. Stat. (1898), 4608.
3. Information and Belief. Complaint
may be sworn to upon information and
belief. U. S. v. Eldredge, 5 Utah 161.
4. Most show that the crime has been
committed. Matter of Wiseman, i Utah
39-
5. Vermont. Stat. (1894), c. 94.
For the formal parts of affidavits.gener-
ally, consult the title AFFIDAVITS, vol.
i, p. 548.
For examples of complaints in this
state see Forms Nos. 3946, 3960.
Complaint under oath is necessary to
amended in matter of substance in the
appellate court. State v. Wheeler, 64
Vt. 569, where the defective complaint,
omitting the formal parts, is set out in
full.
6. Name of complainant need not
appear in the body of the complaint.
State v. Davis, 52 Vt. 376.
7. What persons or officers may make
the complaint are enumerated in the
statute. Vt. Stat. (1894), c. 94.
A justice may cause persons charged
with crimes exceeding his jurisdiction
to try, to be apprehended and com-
mitted, or bound over for trial by
the county court. Vt. Stat. (1894),
1940.
The form of grand jurors' complaint to
a city court may be as follows:
" State of Vermont, \ To the Honor.
City of Burlington, ss. j able City Court,
within and for the city of Burlington,
in the county of Chittenden, state of
Vermont, comes S. M. Flint, city grand
juror within and for said city of Bur.
lington, in his proper person, and on
his oath of office complains that/oAw
Doe, late of said Burlington, on, to wit,
the second day of March, ifyS, at said
the issuance of the warrant, unless the city of JSurtington (Here state the offense
charged, and the facts constituting the
same), contrary to the form, force and
effect of the statute in such case made
and provided, and against the peace
and dignity of the state.
S. M. Flint, City Grand Juror.
The foregoing complaint exhibited
offense had been committed super
visum. State v J. H., I Tyler (Vt.) 448.
Certain omissions which shall not af-
fect the validity of a complaint are
enumerated in the statute. Vt. Stat.
(1894), 1911.
Certain variances in complaints which
may be cured by amendment are men- to me this//M day of March,
tioned in the statute. Vt. Stat. (1894),
Complaint of grand juror cannot be
Charles Jones, City Judge."
State's attorney's complaint may be as
follows:
959
Volume 5.
6704. CRIMINAL COMPLAINTS. 6704.
town of Colchester, in said county of Chittenden, in his own proper
person, and on his oath of office complains, that John Doe, of said
town of Colchester, in said county of Chittenden, on the second day of
March, i89c?, at said town of Colchester, in said county of Chittenden,
{Here state the offense charged and the facts constituting the same), 1 con-
trary to the form, force and effect of the statute in such case made
and provided, and against the peace and dignity of the state. 2
Richard Roe, Grand Juror.
The foregoing complaint exhibited to me this fifth day of March,
iS98.
Abraham Kent, Justice of the Peace.
Form No. 6704.*
Commonwealth of Virginia, \
County of Albemarle. j
Richard Roe upon oath complains that on the second day of March,
iS98, in the county of Albemarle, commonwealth of Virginia, one John
Doe, late of said Albemarle county, did {Here state the offense charged
and the facts constituting the same\ 4 and he the said Richard Roe there-
fore prays that the said John Doe may be apprehended and held to
answer the said complaint, and dealt with in relation thereto as the
law may require.
Dated this///// day of March, \W8.
Richard Roe.
" State of Vermont, \ To Abraham of the statute." State v. Soragan, 40
Windham County, ss. ) Kent, one of Vt. 450.
the justices of the peace within and for In State v. Bacon, 40 Vt. 456, it was
the county of Windham, comes Daniel held that a count in a criminal com.-
Websier, State's Attorney of said county plaint having no reference to another
of Windham, in his own proper person, count, and not concluding against the
and on his oath of office complains that statute, etc., is bad in form.
(Here insert charging part as in Form The oath of a private prosecutor maybe
No. 6703), contrary to the form, force made before any officer authorized to
and effect of the statute in such case administer oaths. State v. Freeman,
made and provided, and against the 59 Vt. 661.
peace and dignity of the state. Where a private prosecutor actually
Daniel Webster, made oath before the issuance of the
State's Attorney, Windham County. warrant, the nonappearance of a certifi-
The witnesses in support of this com- cate to that effect attached to the com-
plaint are: plaint may be amended. State v.
Banks Belk. Freeman, 59 Vt. 661.
T. M. Hughes. A complaint by a private prosecutor
John Smith. need not be made before the magistrate
Daniel Webster, who issues the warrant. State v. Free-
State's Attorney, Windham County. man, 59 Vt. 661.
The within complaint was exhibited 3. Virginia. Code (1887), 3956
to me thisyf/M day of March, A. D. l&qS, et seq.
and process then issued. West Virginia. Code (1891), p. 952,
Abraham Kent, 2 et seq.
Justice of the Peace." For the formal parts of affidavits, gen-
1. Charging part of complaint, see erally, consult the title AFFIDAVITS,
supra, note I, p. 932. vol. I, p. 548.
2. Must conclude "against the form 4. Charging part of complaint, see
supra, note r, p. 932.
960 Volume 5.
6705. CRIMINAL COMPLAINTS. 6706.
County of Albemarle, to wit:
This fifth day of March, :8Pc?, the said Richard Roe made oath to
the truth of the foregoing complaint before me.
Abraham Kent, Justice of the Peace. 1
Form No. 6705.*
The State of Washington }
against > Complaint for Burglary.
John Doe. )
The State of Washington, \
County of Chehalis. \ SS<
Personally appeared before me, Abraham Kent, a justice of the
peace 3 in and for Blank precinct, in said Chehalis county, state of
Washington aforesaid, this fifth day of March, i898, Richard Roe, of
Montesano, in said county of Chehalis, who being first duly sworn by
me complains and says: (Continuing and concluding as in Form
No. 6663.)
Form No. 6706.*
The State of Wisconsin }
against
John Doe. )
The State of Wisconsin,
County of Pierce.
Personally appeared before me, a justice of the peace 5 within and
for said county of Pierce, state of Wisconsin, this fifth day of March,
i898, Richard Roe, of Ellsworth, in said county of Pierce, who being
duly sworn complains and says, that on the second day of March,
i&98, at said county, John Doe did {Here state the offense charged and
the facts constituting the same), 6 against the peace and dignity of the
1. Officers who may issue process for the For an example of a complaint in this
apprehension of offenders are enume- state see Form No. 3948.
rated in the statute. Must be Reduced to Writing Sanb.
Virginia. Code (1887), 3955. & B. Anno. Stat. Wis. (1889), 4776.
West Virginia. Code (1891), p. 952, 5. Magistrates who may issue process
i. for the apprehension of offenders are
2. Washington. Ballinger's Codes enumerated in the statute. Sanb. &
& Stat. (1897), 6695 et seq. B. Anno. Stat. Wis. (1889), 4775;
For the formal parts of affidavits, gen- Faust v. State, 45 Wis. 273; State z-.
erally, consult the title AFFIDAVITS, Stewart, 60 Wis. 587.
vol. i, p. 548. 6. A substantial statement of the of-
Must be Reduced to writing. Ballin- fense is sufficient. Ford v . State, 3
ger's Codes & Stat. Wash. (1897), 6695. Pin. (Wis.) 449. But the statement
Must be subscribed and sworn to by must at least approach toward the
complainant. Ballinger's Codes & Stat. charging of a criminal offense. Bald-
Wash. (1897), 6695. win v. Hamilton, 3 Wis. 747.
3. Magistrates to whom complaints As to the sufficiency of the statement
may be made are enumerated in the of the offense, see State v. Dale, 3 Wis.
statute. Ballinger's Codes & Stat. 795.
Wash. (1897), 6695, 4691. Charging part of complaint, see supra,
4. Wisconsin. Sanb. & B. Anno, note i, p. 932.
Stat. (1889), 477 6 et se <I- Information and belief may sustain the
For the formal parts of affidavits, gen- complaint in some states. State v.
erally, consult the title AFFIDAVITS, Davie, 62 Wis. 305; State v. Tall, 56
vol. i, p. 548. Wis. 577.
5 E. of F. P. 61. 961 Volume 5.
6707. CRIMINAL COMPLAINTS. 6708
state of Wisconsin.
Richard Roe. 1
Subscribed and sworn to before me \h\sfifth day of March, \W8.
Abraham Kent, Justice of the Peace. 1
Form No. 6 7 o 7 . 2
State of Wyoming, County of Johnson, ss.
Before me, Abraham Kent, a justice of the peace 3 in and for said
county, personally came Richard Roe, who being duly sworn accord-
ing to law deposes and says, 4 that on or about the second day of
March, iS98, at the county of Johnson, one John Doe 5 {Here describe
the offense committed as nearly according to the nature thereof as the case
will admit), 6 contrary to the form of the statute in such case made
and provided, and against the peace and dignity of the state.
Richard Roe. 1
Sworn to and subscribed before me this fifth day of March, iS98.
Abraham Kent, Justice of the Peace.
Form No. 6708."
United States of America, )
District of Indiana, \ ss.
City of Indianapolis. )
Before me, Carroll Carter, a United States Commissioner, 9 appointed
by the Circuit Court of the United States for the District of Indiana,
in the Seventh Circuit, to take acknowledgments of bail, etc., according
to the acts of congress in that behalf provided, personally appeared
1. Must be subscribed and sworn to by 7. Must be signed by complainant,
the complainant. Sanb. & B. Anno. Wyoming Rev. Stat. (1887), 3181.
Stat. Wis. (1889), 4776. 8. Offenses against the United States.
2. Wyoming. Rev. Stat. (1887), U. S. Rev. Stat. (1878), 1014, provid-
3181 et seq. ing that for any crime or offense
Kansas. 2 Gen. Stat. (1897), p. 402, against the United States the offender
36. See supra, Form No. 6676, and may, by the proper magistrate and
notes thereto. agreeably to the usual mode of process
Ohio. Bates' Anno. Stat. (1897), against offenders in such state, and at
7133 et seq. See supra, Form No. 6693, the expense of the United States, be
and notes thereto. arrested, imprisoned, or bailed, as the
Oklahoma. Stat. (1893), 4958. See case may be, for trial before such court
supra, Form No. 6694, and notes thereto, of the United States as by law has cog-
For the formal parts of affidavits, gen- nizance of the offense,
erally, consult the title AFFIDAVITS, For the formal parts of affidavits, gen-
vol. i, p. 548. erally, consult the title AFFIDAVITS,
Must be in Writing. Wyoming Rev. vol. i, p. 548.
Stat. (1887), ^ 3181. 9. Magistrates to whom the complaint
3. Magistrates to whom the complaint may be made are enumerated in the stat-
may be made are enumerated in the utes. U. S. Rev. Stat. (1878), 1014.
statute. Wyoming Rev. Stat. (1887), A United States commissioner acting
3180. under the provisions of the U. S. Rev.
4. Must be under Oath. Wyoming Stat., 1014, is merely a committing
Rev. Stat. (1887), 3181. magistrate; U. S. v. Martin, 17 Fed.
5. Must charge some person with com- Rep. 150, and exercises the same but no
mitting some offense. Wyoming Rev. greater power than the state magis-
Stat. (1887), 3181. trates for the same purposes. U. S.
6. Charging part of complaint, see v. Horton, 2 Dill. (U. S.) 94.
supra, note I, p. 932.
962 Volume 5.
6708.
CRIMINAL COMPLAINTS.
6708.
this day Richard Roe, who being first duly sworn deposes and says,
[that he has good reason to believe, and does verily believe,] 1 that
on or about the second day of March, A. D. iS98, one John Doc,
late of the said district, at the said district, unlawfully, wilfully,
knowingly and feloniously, did then and there {Here- state the offense
charged and the facts constituting the same), 2 contrary to the form of
1. A complaint on information and belief
made to a committing magistrate in
California by virtue of U. S. Rev.
Stat. (1878). 1014, and the Cal. Pen.
Code (1897), 806, is insufficient. U.
S. v. Collins, 79 Fed. Rep. 65, citing U.
S. 7'. Rundlett, 27 Fed. Cas. No. 16,
208; U. S. -v. Hardin, 10 Fed. Rep. 803;
U. S. v. Horton, 26 Fed. Cas. No. 15,
393-
2, Charging part of complaint, see
supra, note I, p. 932.
"Agreeably to the usual mode of process
against offenses in such states " is
intended to assimilate the proceed-
ings for holding accused persons to
answer before a court of the United
States for the proceedings had for simi-
lar purposes by the laws of the state
where the proceedings should take
place. U. S. v. Rundlett, 2 Curt. (U. S.)
41; U. S. v. Tureaud, 20 Fed. Rep. 621;
Gould & Tucker's Notes to U. S. Rev.
Stat., p. 339. Unless in contravention
of the express provisions of the federal
statutes. Turners. U. S., 19 Ct. of Cl.
629; Gould & Tucker's Notes to U. S.
Rev. Stat., p. 339.
Thus in Florida the complaint may
be as follows:
" United States of America, I c
Southern District of Florida. \ l-
Before me, Carroll Carter, a. Commis-
sioner of the Circuit Court of the United
States in and for said District, person-
ally comes Richard Roe who, being duly
sworn, on his oath says that he has
good reason to believe, and does believe,
that (continuing as in Form No. 6708 as
to the charging part and concluding thus:)
which is in violation of the laws of the
United States, and contrary to the peace
and dignity thereof.
Richard Roe.
Subscribed and sworn to before me
thisyf/M day of March, A. D. 1&Q&
Carroll Carter, Commissioner
U. S. Circuit Court.
For the Southern District of Florida"
And in Idaho as follows:
" United States of America, )
District of Idaho. \
Before Carroll Carter, a Commis-
sioner of the Circuit Court of the
United States for the District of Idaho
to take bail, etc., Richard Roe, of Mur-
ray, in the County of Shoshone and
State of Idaho, on oath, deposes and
says that John Doe, late of the district
aforesaid, heretofore, to wit, on the
second day of March, A. D. iBgS, at said
district, did (Here state the offense charged
and the facts constituting the same), con-
trary to the form of the statute in such
case made and provided, and against
the peace and dignity of the United
States.
Wherefore, the said deponent prays
that the saidy^w Doe may be appre-
hended and dealt with according to
law.
And furthermore, the said deponent
prays that Banks Belk and T. M.
Hughes, of Murray, in said County of
Shoshone, and State of Idaho, whom he
has reason to believe and does believe
are material witnesses to the subject
matter of this complaint, may be duly
summoned to appear and give evidence
thereto.
Subscribed and sworn to before me,
this _/?/'* day of March, i&gS.
Carroll Carter, Commissioner
of the Circuit Court for the
District of Idaho"
And in Illinois as follows:
" Before Carroll Carter, United States
Commissioner.
United States of America, )
Southern District of Illinois. \
Richard Roe, of the city of Cairo, in
the state of Illinois, being duly sworn,
deposes and says, that on or about the
second A&y of March, A. D. 189$, at said
city of Cairo, in Alexander county, in
said state of Illinois, in said district, one
John Doe, late of said district, did (Hoe
state offense charged and the facts consti-
tuting the same), contrary to the statute
in such case made and provided, and
against the peace and dignity of the
United States.
Wherefore the said deponent prays
that the s&idJoAn Doe may be arrested
and dealt with according to law.
Richard Roe.
3 Volume 5.
6709.
CRIMINAL COMPLAINTS.
6709.
the statute of the United States in such case made and provided,
and against the peace and dignity of the United States of America.
Richard Roe.
Subscribed and sworn to in my presence, this fifth day of March,
A. D. 1 898, at Indianapolis in the district aforesaid.
Carroll Carter,
Commissioner of the Circuit Court of the
United States for the District of Indiana.
II. FOR OFFENSES TRIABLE IN JUSTICES' AND OTHER INFERIOR
COURTS.
1. In Justices' Courts. 1
Form No. 6709.
In the Justice's Court, before Abraham Kent, Justice of the Peace
Subscribed and sworn to before me
day of March, A. D. i8c?c?.
Carroll Carter, United States
Commissioner for the
Southern District of Illi-
nois. "
And in Michigan as follows:
"Eastern District of Michigan, ss.
The complaint of Richard Roe, who
being duly sworn, says that John Doe,
late of said district, heretofore, to wit,
on the second day of March, A. D. 189^?,
at the city of Detroit in said district,
aforesaid, did (If ere state offense charged
and facts constituting the same), contrary
to the act of Congress, in such case pro-
vided, and against the peace and dig-
nity of the United States.
Wherefore complainant prays the
said John Doe may be apprehended
and dealt with according to law.
Taken, subscribed and sworn to, this
fifth day of March, A. D. i8<?<?, before
me,
Carroll Carter, U. S. Commis-
sioner for the Eastern Dis-
trict of Michigan."
And in Ohio as follows:
" United States of America, \
Western Division of the Northern > ss.
District of Ohio. )
Before me, Carroll Carter, a Commis-
sioner of the Circuit Court of the United
States, for the Northern District of Ohio,
personally appeared this day Richard
Roe, who being first duly sworn, deposes
and says that on or about the second fay
of March, A. D. 189$, at , in said
district, John Doe, in violation of section
of the Revised Statutes of the
United States, did unlawfully (Here
state offense charged and the facts consti-
tuting the same).
Deponent further says that he has
reason to believe and does believe that
Banks Belk and T. M. ffttghes are ma-
terial witnesses to the subject matter of
this complaint.
Richard Roe.
Sworn to before me, and subscribed
in my presence, ih'is fifth day of March
A. D. iS^c?.
Carroll Carter, (SEAL)
Commissioner of the Circuit
Court of the United States
for the Western Division
of the Northern District of
Ohio"
1. Offenses Triable in Justices' Courts.
The complaint is similar in all
respects to a criminal complaint
in preliminary proceedings, except
that it must charge an offense such
as to bring the case within the justice's
jurisdiction. Form No. 6709 in the
text is a general form, which may be
used as a model for such a complaint
in most of the states.
Arizona. Pen. Code (1887), 2208;
see supra, Form No. 6663.
Arkansas. Sand. & H. Dig. (1894),
1963; see supra, Form No. 6664.
California. Pen. Code (1897), 1426;
see supra, Form No. 6665.
Colorado. Mills' Anno. Stat. (1891),
1484, 2766; see supra, Form No. 6666.
Connecticut. Gen. Laws (1888),
693 et seq.; see supra, Form No. 6667.
Delaware. Rev. Stat. (1893), p. 734,
16; see supra, Form No. 6668.
Florida. Rev. Stat. (1892), 2950;
see supra, Form No. 6670.
964
Volume 5.
6709.
CRIMINAL COMPLAINTS.
6709.
in and for the town (or township or precinct) of [{naming town, town-
ship or precinct) of] {name of county) county, state of {name of state).
State of (name of state), [plaintiff,] }
against
Complaint for {name of offense).
ss.
John Doe, [defendant.]
State of {name of state), \
County of {name of county). \
Richard Roe, being duly sworn on oath says that at {name of place),
in said (name of county) county, on the second day of March,
Idaho. Rev. Stat. (1897), 8280; see
supra. Form No. 6672.
Illinois. Starr & C. Anno. Stat.
(1896), p. 1384, par. 564; see supra,
Form No. 6673.
Indiana. Homer's Stat. (1896),
1625; see supra, Form No. 6674.
Iowa. Code(i897), SS7S ef *'?', see
supra, Form No. 6675.
Kansas. 2 Gen. Stat. (1897), p. 507,
3; see supra, Form No. 6676.
Kentucky. Bullitt's Crim. Code,
33. providing that no written com-
plaint shall be required for prosecutions
in justices' courts.
Maine. Rev. Stat. (1883), c. 132;
see supra, Form No. 6679.
Maryland. Laws (1894), c. 338; see
supra, Form No. 6680.
Massachusetts. Pub. Stat. (1882), c.
155. 43; see supra, Form No. 668 1.
Michigan. How. Anno. Stat.(i882),
7093; see supra, Form No. 6682.
Minnesota. Stat. (1894), 5095,
5123, 1074, 1357, 1391; see supra, Form
No. 6683.
Missouri. Rev. Stat. (1889), 4329;
see supra, Form No. 6685.
Montana. Pen. Code (1895), 2680;
see supra, Form No. 6686.
Nebraska. Comp. Stat. (1897), 7039;
see supra, Form No. 6687.
Nevada. Gen. Stat. (1885), 4477;
see supra, Form No. 6663.
New Hampshire. Pub Stat. (1891),
c. 248; see supra, Form No. 6688.
New Jersey. Gen. Stat. (1895), p.
1119, I et seq.; see supra, Form No.
6689.
New Mexico. Comp. Laws (1884),
2396; see supra, Form No. 6663.
New York. Cook's Code Crim. Proc.
(1891), 145; see supra. Form No. 6690.
North Carolina. Code (1883), 892
et seq., 1133; see supra, Form No. 6691.
Oklahoma. Stat. (1893), 5540; see
supra, Form No. 6694.
Oregon. Hill's Anno. Laws (1892),
2132 et sea.; see supra, Form No. 6695.
Pennsylvania. See supra, Form
No. 6696.
Rhode Island. Gen. Laws (1896), c.
229; see supra, Form No. 6697.
South Carolina. 2 Rev. Stat. (1893),
p. 268, 19; see supra, Form No. 6698.
South Dakota. Dak. Comp. Laws
(1887), 6145 et seq.; Laws (1893), p. 46;
see supra, Form No. 6699.
Tennessee. See Form No. 6700, and
notes thereto.
Texas. Code Crim. Proc. (1895),
art. m/betseq. ; see supra, Form No. 6701.
Utah. Rev. Stat. (1898), 5125; see
supra, Form No. 6702.
Vermont. Stat. (1894), 1927; see
supra, Form No. 6703.
Virginia. Code (1887), 4106; see
supra, Form No. 6704.
Washington. Ballinger's Anno.
Codes & Stat. (1897), 6667; see supra,
Form No. 6705.
West Virginia. Code (1891), p. 488,
223; see supra. Form No. 6704.
Wisconsin. Sanh. & B. Anno. Stat.
(1889), 4740 et seq.; see supra. Form
No. 6706.
Wyoming. Rev. Stat. (1887), $ 3621;
see supra. Form No. 6707.
Consult also annotations to Forms
Nos. 6662 to 6708, supra.
For the formal parts of affidavits, gen-
erally, consult the title AFFIDAVITS,
vol. i, p. 548.
1. Time and Place. A complaint in
a justice or police court is sufficient
which sets forth the offense charged,
with such particulars of time, place,
person and property as to enable the
defendant to understand distinctly the
character of the offense complained of,
North Dakota. Rev. Codes (1895), and to answer the complaint. Ex /.
6738 et seq.; see supra, Form No. 6692. Mansfield, 106 Cal. 400.
Ohio. Bates' Anno. Stat. (1897),
7 J 33 ft seq.; see supra, Form No. 6693.
Information and Belief. A complaint
before a justice of the peace charging
965
Volume 5.
6710. CRIMINAL COMPLAINTS. 6710.
John Doe did commit the crime of {name of offense charged} as follows:
the said John Doe, then and there being, did wilfully and unlawfully
{Here state the facts constituting the offense charged), contrary to the
form of the statute in such case made and provided, and against the
peace and dignity of the state of {name of state)}- Wherefore the said
Richard Roe prays that the said John Doe may be arrested (or appre-
hended) and dealt with according to law (or as justice may require).
Richard Roe.
Subscribed and sworn to before me this fifth day of March, A. D.
iS98.
Abraham Kent, Justice of the Peace in and for
. [the town (or township or precinct) of
{name of town, township or precinct), in]
(name of county) county, state of {name
cf state).
Form No. 6710.*
The State of Alabama, \
Dale County. \
Personally appeared before me, Abraham Kent, a justice of the
peace (or a judge of the county court) of said county, affiant one
Richard Roe, who being duly sworn says on oath that he has probable
cause for believing and does believe 3 that an offense, to wit, an assault
and battery {or other misdemeanor, designating it by name or by some other
phrase which in common parlance designates //),* has been committed in
defendant with a misdemeanor, sworn 4204, 4236, prescribing the form of this
to by the county attorney "on infor- affidavit. Consult also Form No. 6662,
mation and belief," is not sufficient to supra, and notes thereto,
sustain a conviction. So held in Kansas Precedents. See Ex p. Sam, 51 Ala.
on petition for writ of habeas corpus. 35; Murphy z>. State, 55 Ala. 254.
Matter of Lewis, 31 Kan. 71. For the formal parts of affidavits, gen-
Scandalous Matter. A complaint erally, consult the title AFFIDAVITS,
otherwise sufficient ought not to bedis- vol. i, p. 548.
missed merely because it contains A complaint on oath charging a person
scandalous matter. So held in a com- named with the commission of a speci-
plaint for vagrancy, which charged the fied offense is the initiatory step in
defendant with " being a first-class criminal proceedings by which the
pimp." Butte v. Peasley, 18 Mont, jurisdiction of a justice of the peace is
303. called into exercise. Drake v. State,
Charging Part. See supra, note I, 68 Ala. 510.
p. 932. 3. " Has reason for believing and does
1. Conclusion. While the rule is in believe" is equivalent to the words
force in California requiring the con- " has probable cause for believing and
elusion of an indictment or information does believe." Sale v. State, 68 Ala.
to be against the form of the statute, 530.
yet this rule does not apply to com- 4. Describing offense with same par-
plaints for misdemeanors in justice and ticularity as in an indictment is not
police courts. Ex p. Mansfield, 106 necessary; it is sufficient to describe
Cal. 400. the offense by name or by some phrase
Names of the witnesses need not be which in common parlance describes it.
indorsed upon the complaint in a Brazleton v. State, 66 Ala. 96; Louis v.
prosecution commenced before a jus- State, 112 Ala. 52. The affidavit in the
tice of the peace. State v. Wood, 49 latter case was as follows: "Personally
Kan. 711. appeared before me, A. A. Harris, a
2. Alabama. Crim. Code (1886), justice of the peace in and for said
966 Volume 5.
6711. CRIMINAL COMPLAINTS. 6712.
said county by one John Doe on the person (or proper tv, as the case
may be) 1 of one Samuel f Short, against the peace and d'ignity of the
state of Alabama. 2 Richard Roe.
Subscribed and sworn to before me this//M day of March, iB98.
Abraham Kent,
Justice of the Peace (QV judge of the County Court)
Form No. 6711.
(Precedent in Ardery v. State, 56 Ind. 328.)*
[State of Indiana, \
County of Bartholomew^ \
Andrew J. Galbraith swears, that, on or about the 8th day of Octo-
ber, 1 875, at the county of Bartholomew, state of Indiana, one Henry
Ardery did then and there, in a public place, make an indecent
exposure of his person, by then and there making an uncovered
exhibition of his privates, in the presence of divers persons then and
there assembled, 5 contrary to the form of the statute in such case
made and provided, as affiant is informed and verily believes.
Andrew J. Galbraith.
Subscribed and sworn to before
George W. Arnold, Justice of the Peace.
Form No. 6712.*
(Precedent in State v. Turnbull, 78 Me. 392.)
county, Leroy Louis, who being duly Words of the Statute. It is generally
sworn, says on oath, that Richard Louis, sufficient to follow the words of the
w thin twelve months before making statute, but this rule does not apply
th's affidavit, in said county, did com- where the statute fails to prescribe
mit assault and battery with a weapon, with definiteness the constituents of
or assault, or affray, on the person of the offense. Miles v. State, 94 Ala.
Leroy Louis, against the peace and dig- 106.
nity of the state of Alabama." And it Time need not be alleged in the affi-
was held that the addition of the words davit. Bell v . State, 75 Ala. 25.
"or affray" did not invalidate the 1. Not confined to offenses against the
affidavit. person or property, as the form indi-
In Gandy v. State, 81 Ala. 69, the cates. Sale v. State, 68 Ala. 530.
complaint was as follows: "Personally 2. Need not conclude with the words
appeared Rufus Graydon, who being " against the peace and dignity of the
duly sworn deposes and says, that on state." Thomas v. State, 107 Ala. 61.
or about the 2oth day of September, 3. It was held in this case that the
1896, in said state and county, the complaint sufficiently charged the of-
offense of persuading my daughter fense of public indecency. Ardery v.
(Belle) from my employment and at State, 56 Ind. 328. See Horner's Ind.
night, and also taking her to his home Stat. (1896), 1625. Consult also Form
and secreting her to prevent me from No. 6674, supra, and notes thereto,
securing and taking her back to my For the formal parts of affidavits, gen-
employ, and he has forbidden me from erally, consult the title AFFIDAVITS,
coming in his house and threatening to vol. I, p. 548.
shoot me or any white man, was in the 4. The words in [ ] will not be found
opinion of the complainant committed, in the reported case, but have been
and that Lazarus Gandy was guilty added to make the form complete,
thereof." It was held that the com- 5. Charging part of complaint, see
plaint was wanting in that certainty of supra, note I, p. 932.
description which was necessary to 6. Maine. Rev. Stat. (1883), c. 132.
constitute a formal accusation of Consult also Form No. 6679, supra, and
crime. notes thereto.
96? Volume 5.
6712. CRIMINAL COMPLAINTS. 6712.
State of Maine. Lincoln, ss.
To James J. York, Jr., one of the trial justices within and for the
county of Lincoln:
William Vannah of Nobleboro in the county of Lincoln, on the fif-
teenth day of May in the year of our Lord one thousand eight
hundred and eighty-four, in behalf of said State, on oath complains
that William Turnbull and Edward Harrington, both of Edgecomb in
the county of Lincoln, on the first day of May, A. D. 1884, and on di-
vers other days and times between said_/rj/ day of May and the day
of making this complaint, did keep and maintain, for the purpose of
taking alewives and other fish, a certain fish weir, in the waters of
the Damariscotta river aforesaid in said county of Lincoln, [at a place
{naming or describing if) East of the railroad bridge near Damaris-
cotta Mills, which waters are not by section thirty-one of chapter
forty-six of the Maine Revised Statutes, exempt from the provisions
of section forty-three of chapter forty-six of the Maine Revised
Statutes relating to migratory fishes and the supervision of fish-
ways by the commissioners,] 1 and that said William Turnbull and
Edward Harrington were bound and required by law to take out and
carry on shore the netting and other material which, while fishing,
closes that part of said weir where the fish are usually taken, and let
the same there remain during the weekly close time as prescribed
and required by section forty-three of chapter forty of the Revised
Statutes of Maine of the year i883; to wit, during the time between
sunrise on Saturday morning of the tenth day of May, A. D. 1884, and
sunrise on the following Monday morning of the twelfth day of May,
A. D. 1884, but the said William Turnbull and Edward Harrington
did not take out and carry on shore the netting or other material
which, while fishing, closes the part of said weir where the fish are
1. This was a complaint for fishing statute. The complaint was as follows:
with weirs in a river during Sunday "To Eusebeus Weston andfames Bell,
(close time) and was adjudged to be Esq'rs, Justices of the Peace in and for
bad on demurrer for not alleging that the county of Somerset:
the weirs were located in that part of The undersigned, selectmen of Skow-
the river not exempted from the pro- hegan, represent that Mehitable Nicho-
visions of the statute (Me. Rev. Stat., las, Sarah J. Hayden, Elbridge G. and
c. 40, 43 and 31). State v. Turnbull, William H. Hayden, Mary J. and Fred-
78 Me. 392. This omission has been erick York, Alartha Colway and her two
supplied by words in [ ]. children, names unknown, Elizabeth
For the formal parts of affidavits, gen- and Sally Belougee&n& three small boys
erally, consult the title AFFIDAVITS, vol. of Louis Belougee, names unknown, all
I, p. 548. of said Skowhegan, in said Skowhe^an,
Charging part of complaint, see supra, are infected with contagious sickness,
note I, p. 932. and they therefore request you to issue
In Pinkham v. Dorothy, 55 Me. 135, to a proper officer a warrant requiring
the complaint asked for the right to im- him to remove said infected persons,
press property to be used for taking and to impress and take up convenient
care of persons inflicted, with sickness houses, lodgings, nurses and attend-
dangerous to the public health. It was ants, and other necessaries for the ac-
held that under the law the impress- commodation, safety and relief of said
ment of a stage coach for the removal persons.
of such a person was not authorized Dated at Skowhegan this jist day of
by the Me. Rev. Stat., c. 14, as the im- March, A. D. 186^.
pressing of property can only be ex- James B. Dascomb, \ Selectmen of
ercised when expressly granted by Daniel Snow, \ Skowhegan"
968 Volume 5.
6713. CRIMINAL COMPLAINTS. 6713.
usually taken, and let the same there remain during said close time as
required by said statute,, to wit: during the time between sunrise on
Saturday morning of the tenth day of May aforesaid and sunrise on
the following Monday morning of the twelfth day of May aforesaid,
but did, then and there during said close time keep the part of said
weir where the fish are usually taken as aforesaid closed, against the
peace of said State and contrary to the form of the statute in such
case made and provided. Wherefore the said William Vannah prays
that the said William Turnbull and Edward Harrington may be ap-
prehended and held to answer to this complaint and further dealt
with relative to the same as the law directs. Dated at Nobleboro in
the county of Lincoln \\\\s, fifteenth day of May, A. D. i&&.
William Vannah.
State of Maine, Lincoln, ss.
On \hz fifteenth day of May, A. D. i&&4, the above named William
Vannah personally appeared and made oath to the truth of the fore-
going complaint.
Before me, Thomas J. York, trial justice.
Form No. 6713.'
(Precedent in LaRoe v. Roeser, 8 Mich. 537.)*
State of Michigan, county of Saginaw, ss: Garrett Freeland? of
Tittabawassee, in said county, on his oath complains, that on the ISth
day of June, i&5$, James LaRoe, Jefferson Chapman, and Joe Hackney,
without his, the said Garrett Freeland's consent, or any other authori-
ty, forcibly entered his house on the premises occupied by him, on
the southwest corner of section sixteen in said township, and on his
command to leave and quit the said house, refused to do so, and did
not go, and the said James LaRoe drew a pistol from his pocket, and
pointed it towards this complainant, threatening to shoot him, and
said complainant; and the said Jefferson Chapman raised a club
against the said complainant, saying that he, would fix him, and
knock his old brains out; against the peace of the said people,
and against the form of the statute in such case made and provided;
for which assault the said Garrett Free/and prays that the said James
LaRoe, Jefferson Chapman, and Joe Hackney, may be apprehended to
1. Mast be reduced to writing, and 2. This complaint was held to be suf-
must show in substance the commis- ficient. Consult also supra, Form No.
sion of such an offense as the justice 6682, and notes thereto,
can hear and try. It must allege the Charging part of complaint, see j/r<7,
time and place of the offense, so that note i, p. 932.
it may appear whether or not the prose- For example of complaint in this state,
cution is barred by the statute of limi- for assault, see Form No. 2414; for
tations, and whether the act was bastardy, see Forms Nos. 3941, 39531
committed within the legal jurisdic- for carrying weapons, see Form No.
tion of the justice. How. Anno. Stat. 5157.
Mich. (1882), 7093; People v. Gregory, 3. May be made by a constable or other
30 Mich. 371. person, and must be signed by the com-
For the formal parts of affidavits, gen- plainant. How. Anno. Stat. Mich,
erally, consult the title AFFIDAVITS, (1882), 7093.
vol. i, p. 548.
969 Volume 5.
6714. CRIMINAL COMPLAINTS. 6715.
answer to his complaint, and further dealt with relative to the same
as law and justice may require.
Garrett Freeland.
Sworn to and subscribed before me, this 14th day of June, i8#9.
Otto Roeser, Justice of the Peace.
Form No. 67I4. 1
State of Mississippi,
Winston County.
Personally appeared before me Abraham Kent, a justice of the
peace in and for said county, and in Justice's District No. four,' 2 '
Richard Roe, who being duly sworn, deposes and says, that John Doe,
on or about the tenth day of March, i&96, at and in said county and
justice's district aforesaid, did (Here set forth the facts constituting
the offense}? against the peace and dignity of the state of Mississippi.
Richard Roe.
Sworn to and subscribed before me this eleventh day of March, i896.
Abraham Kent, J. P.
Form No. 6715.*
State of North Dakota, \_ In Justice Court, before Abraham Kent,
County of Burleigh. ) ' Justice of the Peace.
The State of North Dakota )
against V Criminal Complaint.
John Doe. )
Richard Roe, being first duly sworn, says that on the second day of
March, A. D. iS98, at said county, the above named defendant did
(Here state the offense), 5 against the peace and dignity of the State of
North Dakota.
Wherefore complainant prays that defendant John Doe may b
arrested and dealt with according to law.
Richard Roe.
Subscribed and sworn to before me thisy///$ day of March, iS98.
Abraham Kent, Justice of the Peace. 6
1. Mississippi. Affidavit must be supra, Form No. 6692, and notes
filed to procure issuance of warrant, thereto.
Anno. Code (1892), 2421; Bigham v. For the formal parts of affidavits,
State, 59 Miss. 529. generally, consult the title AFFIDAVITS,
For the formal parts of affidavits, gen- vol. i, p. 548.
erally, consult the title AFFIDAVITS, vol. 5. Must state facts constituting the
I, p. 548. offense in ordinary and concise lan-
2. Justices' district in which the offense guage, with sufficient certainty and
is committed should be stated. Miss, with such particulars of time, place,
Anno. Code (1892), 2420, 2421. person and property as will enable a
3. Charging part of complaint, see person of common understanding to
supra, note I, p. 932. know what is intended and to authorize
4. North Dakota. Rev. Codes (1895), the court to pronounce judgment. N.
6738-6742. Section 6742 prescribes Dak. Rev. Codes (1895), 6740. See
the form of the complaint substantially also supra, note I, p. 932.
as set out in the text. Consult also 6. Must be sworn to before the justice.
N. Dak. Codes (1895), 6741.
970 Volume 5.
6716. CRIMINAL COMPLAINTS. 6717.
Form No. 6716.'
In the Justice's Court for the Precinct of Blank, County of Linn,
and State of Oregon.
The State of Oregon, plaintiff, )
against v Complaint.
John Doe, defendant. )
Richard Roe is accused by John Doe by this complaint, of the crime
of {name of offense), committed as follows:
The said/^tf Doe, on the second fay of March, A. D. iS9S, in the
county of Linn and state of Oregon (Here state facts constituting the
offense charged)? contrary to the statute in such cases made and pro-
vided, and against the peace and dignity of the state of Oregon.
Dated at Albany, in the county of Linn and state of Oregon the
fifth day of March, A. D. i898.
Richard Roe.
State of Oregon, \
County of Linn, \
I, Richard Roe, being duly sworn, say that I am the person com-
mencing the within-entitled action, and that the complaint therein is
true, as I verily believe.
Richard Roe.
Subscribed and sworn to before me \htfifth day of March, \ D
iB98.
Abraham Kent, Justice of the Peace.
Form No. 6 7 i 7 , 3
In Justice's Court, )
Precinct No. Three, V No. 33.
freestone County. )
In the name and by the authority of the State of Texas:
Before me, the undersigned authority, on this day personally
appeared Richard Roe, who, after being by me duly sworn, on oath
deposes and says that heretofore, to wit, on or about the second fay
of March, i898* at Fairfield, in the county of Freestone, 5 and state of
1. Oregon. Hill's Anno. Laws (1892), 2. Charging part of complaint, see
2132, providing that in a justice's supra, note I, p. 932.
court a criminal action is commenced 3. Texas. Code Crim. Proc. (1895),
by the filing of the complaint therein, art. 936 et seq. Consult also Form
verified by the oath of the person com- No. 6701, supra, and notes thereto,
mencing the action, who is thereafter For the formal parts of affidavits, gen-
known as the private prosecutor. Con- erally, consult the title AFFIDAVITS, vol.
suit also Form No. 6695, supra, and I, p. 548.
notes thereto. Must be Reduced to Writing. Tex.
Complaint must be deemed an indict- Code Crim. Proc. (1895), art. 937.
ment within the meaning of the pro- 4. Time. That offense is not barred
visions of chapter VIII of the Code of by limitation must appear from the
Criminal Procedure, prescribing what date of the offense stated in the corn-
is sufficient to be stated in such plea plaint. Tex. Code Crim. Proc. (1895),
and the form of stating it. Hill's art. 938.
Anno. Laws Oregon (1892). 2133. 5. County. That offense was com-
For the formal parts of affidavits, gen- mitted in the county must appear,
erally, consult the title AFFIDAVITS, Tex. Code Crim. Proc. (1895), art. 938.
vol. i, p. 548.
971 Volume 5.
6718. CRIMINAL COMPLAINTS. 6719.
Texas, one John Doe?- of said county and state, and then and there
unlawfully (State offense charged and the facts constituting zV), 2 contrary
to the form of the statute in such cases made and provided, and
against the peace and dignity of the state.
Richard Roe.
Sworn to and subscribed before me by said Richard Roe this fifth
day of March, iS98.
Abraham Kent, Justice of the Peace,
Precinct No. Three, Freestone county, Texas.
State of Wisconsin. ,
' L ss.
Form No. 67 i8. 3
(Sanb. & B. Anno. Stat. Wis. (1889), 4741.)
County of Pierce. \
The State of Wisconsin, }
against
John Doe. )
Richard Roe being duly sworn, says that on the second fay of March,
in the year i898, at said county, (name of accused or alias) did (state
the crime),* against the peace and dignity of the state of Wisconsin.
Richard Roe?
Subscribed and sworn to before me, this fifth day of March, i&98.
Abraham Kent, Justice of the Peace.
Form No. 671 p. 6
(Wyoming Rev. Stat. (1887), 3623.)
Territory of Wyoming, )
County of Johnson? [
Territory of Wyoming }
against
John Doe, defendant. 8 )
Before Justice Abraham Kent. 9
1. Name of accused, if known, must be 4. Charging part of complaint, see
stated; if unknown, he must be de- supra, note I, p. 932.
scribed if practicable. Tex. Code 5. Must be signed and sworn to by the
Crim. Proc. (1895), art. 938. complainant. Sanb. & B. Anno. Stat.
2. Offense charged must be stated in Wis. (1889), $ 4740.
the complaint in intelligible words. 6. Wyoming. Rev. Stat. (1887),
Tex. Code Crim. Proc. (1895), art. 938. 3623. Consult also Form No. 6707,
Charging part of complaint, see supra, supra, and notes thereto,
note i, p. 932. For the formal parts of affidavits, gener-
3. Wisconsin. Sanb. & B. Anno, ally, consult the title AFFIDAVITS, vol.
Stat. (1889), 4740 et seq. Consult also I, p. 548.
Form No. 6706, supra, and notes 7. Must contain name of county where
thereto. the information is filed. Wyoming
For the formal parts of affidavits, gen- Rev. Stat. (1887), 3622.
erally, consult the title AFFIDAVITS, 8. Must contain name of the defendant if
vol. I, p. 548. known, and if not, then such name as
Must be Reduced to Writing. Sanb. may be given by the complainant.
& B. Anno. Stat. Wis. (1889), 4740. Wyoming Rev. Stat. (1887), 3622.
Made on information and belief may be 9. Must contain name of justice before
sufficient. State v. Davie, 62 Wis. whom it is filed. Wyoming Rev. Stat.
305. (1887), 3622.
972 Volume 5.
6720.
CRIMINAL COMPLAINTS.
6720.
The defendant is accused of the crime or offense. For that the
defendant on the tenth, day of March, A. D. I896, 1 at the town of
Buffalo in the county aforesaid {Here state the tutor information con-
stituting the offense as in the indictment). 2
Richard Roe *
Subscribed and sworn 5 to before me this the fifteenth day of March,
i&96.
Abraham Kent, Justice of the Peace.
2. In Other Inferior Courts. 4
a. Chairman of Board of Trustees.
1. Time and Place. The information
must contain a statement of the facts
constituting the offense in ordinary and
concise language, and the time and
place of the commission of the offense,
as near as may be. Wyoming Rev.
Stat. (1887), 3622.
2. Charging part of complaint, see
supra, note I, p. 932.
3. Must be subscribed and sworn to.
Wyoming Rev. Stat. (1887), 3621.
4. Offenses Triable in Other Inferior
Courts. The complaint, affidavit or
information in mayors' courts, police
courts, and other inferior courts having
jurisdiction similar to that exercised by
justices of the peace in the trial of mis-
demeanors and petty offenses, is simi-
lar in all material respects to criminal
complaints in justices' courts, except
that the complaint must charge an
offense within the jurisdiction of the
particular court. Examples of such
complaints are given in the text in
Forms Nos. 6718 to 6733.
Alabama. Crim. Code (1886), 4204.
Arizona. Pen. Code (1887), 2208.
Arkansas. Sand. & H. Dig. (1894),
5291 etseq.
California. Pen. Code (1897), 1426.
Colorado. Mills' Anno. Stat. (1891),
3525-
Connecticut. Gen. Stat. (1888), 709.
District of Columbia. Comp. Stat.
(1894), p. 4?8, 10.
Florida. Rev. Stat. (1892), 2847,
2871.
Georgia. 3 Code (1895), 735 et seq.
Idaho. Laws (1891), p. 163, II.
Illinois. Starr & C. Anno. Stat.
(1896), p. 720, par. 69; p. 792, par. 199.
Indiana. Horner's Anno. Stat.
(1896), 3062, 3206.
Iowa. Code (1897), 688, 691, 692,
5182.
Kansas. I Gen. Stat. (1897), p. 364,
6 133 etseq., p. 424, 97 etseq., p. 465,
91 et seq.
Code
Kentucky. Bullitt's Crim.
(1895), 13, subd. 4, 312, 318.
Maine. Stat. ( 1882), c. 132. Seealso
Form No. 2409 for a precedent of a
complaint in the municipal court.
Massachusetts. Pub. Stat. (1882), c.
154-
Michigan. How. Anno. Stat. (1882),
2497, 2498, 2839, (Supp. 1890) 659142.
Minnesota. Stat. (1894), 1074,
T357, I39i-
Mississippi. Anno. Code (1892),
3001.
Missouri. Rev. Stat. (1889), 1063,
1289, 1552, 1555 et seq., 1634, 1676,
1685.
Montana. Pen. Code (1895), 4911.
4912.
Nebraska. Comp. Stat. (1897),
1268, 6984.
Nevada. Gen. Stat. (1885), 2452
et seq.
New Hampshire. Pub. Stat. (1891),
c. 248, 7 et seq.
New Jersey. Gen. Stat. (1895), p.
1119, I, p. 1163, 217, p. 2481, X, p.
2483, 4, P- 2487, S 32.
New Mexico. Comp. L. (1884),
1628.
New York. Cook's Code Crim.
Proc., 74, 699, 741.
North Carolina. Code (1883), 3818.
North Dakota. Rev. Codes (1895),
2193, 2194, 2203.
Ohio. Bates' Anno. Stat. (1897), fc
1787, 1831, 7134, 7135.
Oklahoma. Stat. (1893), 606,607,
614, 692, 707, 1562; Laws (1895), p. 203,
36-
Oregon. Const., art. VII. I.
Pennsylvania. Pepp. & L. Dig.
(1894), P- 3497. I ft "<?
Rhode Island. Gen. Stat. (1896), c.
229.
Tennessee. Code (1896), 6926.
Texas. Code Crim. Proc. (1895),
arts. 98, 930.
Utah. Rev. Stat. (1898), 239.
973
Volume 5.
6720. CRIMINAL COMPLAINTS. 6721.
Form No. 6720.'
(Mo. Rev. Stat. (1889), 1685.)
State of Missouri. } n ,
County of Barton, \ ss. Bef ore Geor ^ H \ W , al ^ Chairman of the
Town of Liberal. ) Board of T ^stees.
The Town of Liberal, plaintiff, )
against
John Doe, defendant. )
John Doe To the Town of Liberal, Dr.
To violation of town ordinance No. 32, in relation to (Here state
to what the ordinance violated relates, whether it be in relation to disturb-
ing the peace, or any other violation, as the case may be), one hundred dol-
lars. In, this, to wit, that the said John Doe, on the second day of
March, \W8, at the town of Liberal and within the limits thereof, did
then and there unlawfully (Here state in brief and concise language the
facts constituting the offense),^ contrary to the said ordinance in such
cases made and provided, and against the peace and dignity of said
town of Liberal.
Thomas W. Martin?
Town Attorney.
Thomas W. Martin makes oath and says, that the facts and alle-
gations contained in the foregoing complaint are true according to
the best knowledge, information and belief of the affiant.
Thomas W. Martin.
Subscribed and sworn to before me this fifth day of March, i898.
George H. Walser,
Chairman of the Board of Trustees.
b. City Court.
Form No. 6721.
(Precedent in Beaumont v. Dallas, 34 Tex. Crim. Rep. 68. ) 4
Virginia. Code (1887), 4106. lar policeman, need not be in writing, if
Washington. i Hill's Anno. Stat. the defendant be present in court and
(1891), 533, 612, 657, 691; Ballinger's in custody, but in every other case the
Anno. Codes & Stat. (1897), 752, 909 complaint shall be in writing, and
et seg., 962, 1036. sworn to before the warrant be issued
West Virginia. Code (1891), p. 430, for the arrest of the defendant.
39. For formal parts of affidavits, gener-
Wisconsin. Sanb. & B. Anno. Stat. ally, consult the title AFFIDAVITS, vol. I,
(1889), 852</, 886, p. 564, 69, pre- p. 548.
scribing the form of a complaint in a Justices of the peace have like juris-
police court. diction upon complaint by the town
1. Missouri. Rev. Stat. (1889), constable, or marshal, to issue war-
1685, providing that all prosecutions rants, provided every such application
for violating any town ordinance shall be sustained by the affidavit of the per-
be entitled " The Town of against son making the same. Mo. Rev. Stat.
," naming the town and the per- (1889), 1676.
son, or persons, charged, and the 2. Charging Part. See supra, note
chairman of the board of trustees i, p. 932.
shall state in his docket the name 3. Who may Make the Complaint.
of the plaintiff, the nature and charac- The town attorney, the town marshal,
ter of the offense, the date of the trial, or any other person competent to testify
the names of all witnesses examined, in the cause, may make the complaint,
etc. The complaint, when made by Mo. Rev. Stat. (1889), 1686.
the marshal, assistant marshal, or regu- 4. This was a complaint in the city
974 Volume 5.
6722. CRIMINAL COMPLAINTS. 6722.
The City of Dallas }
v. \ No. 417.
John Doe. )
[State of Texas, )
Tar rant County, V
City of Dallas.^ )
Personally appeared before me, the undersigned authority, C. F.
Durham, who after being duly sworn, deposes and says, that [John
Doe,]*- in the city of Dallas, and the state of Texas, on the twenty-first
day of March, A. D. iS94, and before the filing of this complaint, was
the owner, tenant, and lessee of a house, building, and edifice then
and there situated; and he, the said [John Doe,] 1 did then and there
unlawfully keep, was concerned in keeping, and knowingly per-
mitted to be kept the said house, building and edifice for prostitu-
tion, where prostitutes were then and there permitted by the said
[John Doe} 1 to resort and reside for the purpose of plying their
vocation, contrary to the ordinance in such cases made and provided,
against the peace and dignity of the state.
C. F. Durham.
Sworn to and subscribed before me this twenty-fourth day of
March, A. D. i894-
M. C. Kahn,
Clerk of the City Court, City of Dallas^ Texas.
e. County Court.*
court of Dallas charging defendant accusation founded thereon may con-
with keeping a disorderly house. See sist of two counts, each charging one of
also Form No. 6717, supra, and notes the offenses set forth in the affidavit,
thereto. Consult also list of statutes Hathcock v. State, 88 Ga. 91.
cited supra, note i, p. 932. Verification. Where the affidavit sets
For formal parts of affidavits, gen- out one of two misdemeanors, and adds
erally, see the title AFFIDAVITS, vol. i, the facts concerning the other, intro-
p. 548. ducing these facts with the phrase
1. The words in [ ] do not appear in "The deponent further charges and
the reported case. accuses the said William Hathcock
Description of Defendant. In the com- with misdemeanor in this," the verifi-
plaint appearing in the reported case, cation of the affidavit is not confined to
instead of "John Doe," the complaint these terms of accusation, but extends
charged that " Mrs. Beaumont, whose also to the facts set out in the sub-
given name is to affiant unknown, a joined statement as to the mode of
better description of whom affiant can- committing the misdemeanor. Haih-
not give." It was held that under the cock v. State, 88 Ga. 91.
Texas Code of Criminal Procedure, 2. In the county court in Alabama the
art. 236, subd. i, requiring that the affidavit follows the same form sub-
complaint " must state the name of the stantiallyasin the justice's court. Ala.
accused, if known, and if not known, Crim. Code (1886), 4204. See Form
must give some reasonably definite No. 6710, supra.
description of him," the complaint was In Henderson v. State, 109 Ala. 40,
insufficient. appellant was convicted under a corn-
Charging part, generally, see supra, plaint made before the judge of the
note i, p. 932. county court, the complaint being as
Charging Two Misdemeanors. An affi- follows: "Before me, IV. Jt. De Loach,
davit on which an accusation is founded as judge of the county court in and for
in the city court may charge two mis- said county, personally appeared IVooa-
demeanors of the same class as com- son S. Guilty, who being by me duly
mitted by the same person, and the sworn, says on oath, that he has prob-
975 Volume 5.
6722. CRIMINAL COMPLAINTS. 6723.
Form No. 6722.'
In Court of County Judpe, 2 Marion County.
State of Florida, \
County of Marion. \
Before me, Richard Johnson, county judge in and for said county,
personally came Richard Roe, who being duly sworn, says that on the
tenth day of March, A. D. i896, in the county aforesaid, one John Doe
did (Here the nature of the offense committed must be stated and the cir-
cumstances attending its commission)?-
Richard Roe.
Sworn to and subscribed before me this eleventh day of March, i896.
Richard Johnson, County Judge for Marion County.
Form No. 6723.*
Georgia, Bibb County.
Personally came Richard Roe, who on oath saith to the best of his
knowledge and belief John Doe did on the tenth day of March in the
year one thousand eight hundred and ninety-six, in the county afore-
said, commit the offense of (Here must be set forth the offense and a state-
ment of the facts constituting //), 5 and this deponent makes this affidavit
that a warrant may issue for his arrest.
Richard Roe.
Sworn to and subscribed before me this eleventh day of March, i896.
Richard Johnson, County Judge of Bibb County. 6
able cause for believing and does believe 3. Charging Part. See supra, note
that before the making of this affidavit i, p. 932.
Frank Henderson, with the purpose to 4. Georgia. 3 Ga. Code (1895), 735
hinder, delay, and defraud affiant, who el seq.; Dickson v. State, 62 Ga. 586.
had a lawful and valid claim thereto Consult also list of statutes cited supra,
under a written instrument, lien created note i, p. 932. See also Form No.
by law, for rent or advances, or other 6709, supra, and notes thereto,
lawful and valid claim, verbal or writ- The affidavit before a county court
ten, did sell, or remove personal prop- shall be in the form prescribed by 3 Ga.
erty, consisting of fourteen bushels of Code (1895), 884. See also supra,
corn, of the value of ten dollars, the said Form No. 6671, and notes thereto.
Frank Henderson having, at the time a For the formal parts of affidavits, gen-
knowledge of the existence of such erally, consult the title AFFIDAVITS, vol.
claim. i, p. 548.
W. S. Gulley." 5. Need not charge the offense abso-
Information and belief may support a lately and without qualification, but
complaint in the county court in Texas, only to the best of the affiant's knowl-
Dean v. State, 88 Tex. 290. edge and belief. Thomas v. State, 91
1. Florida. Rev. Stat. (1892), Ga. 207.
2847,2871. Consult also list of statutes Charging Part. See supra, note i,
cited supra, note . p. . See also p. 932.
Form No. 6670, supra, and notes thereto. 6. Neither attested by an officer author-
For the formal parts of affidavits, gen- ized to administer oaths nor purport-
erally. consult the title AFFIDAVITS, vol. ing to be sworn to in open court is void
i, p. 548. as the basis of a criminal proceeding.
2. Jurisdiction. See Rev. Stat. Fla. Scroggins v. State, 55 Ga. 380.
(1892), 2833, 2847.
976 Volume 5.
6724. CRIMINAL COMPLAINTS. 6725.
Form No. 6724.'
In the County Court of Coif ax County, Nebraska.
The state of Nebraska \
against > Complaint for (name of offense).
John Doe. )
State of Nebraska, \
County of Coif ax. , S1
The complaint and information of Richard Roe, of the county afore-
said, made in the name of the state of Nebraska, before me, the
county judge within and for said county, this fifth day of March,
A. D. i8##, who being duly sworn, on his oath, says that one John Doe,
on the second 'day of March, A. D. iS98, in the county aforesaid, then and
there being, did then and there (Here state off ense charged and the facts
constituting the same), 2 contrary to the form of statutes in such case
made and provided, and against the peace and dignity of the people
of the state of Nebraska.
Richard Roe.
Subscribed in my presence, and sworn to before me, this fifth day
of March, \W8.
Carroll Johnson, County Judge.
d. Mayor's Court.
Form No. 6725.*
The State of Texas,
Freestone County,
Town of Fair field.
In the name and by the authority of the state of Texas'.
Before me, the undersigned authority, on this day personally
appeared Richard Roe, who, after being by me duly sworn, on oath
deposes and says that heretofore, to wit, on or about the second day
of March, i&98, and prior to the filing of this complaint, in the town
of Fairfield, county of Freestone and state of Texas, one John Doe
did then and there unlawfully (Here state offense charged and the facts
constituting the same),* contrary to the ordinances of said town in
1. Nebraska. Comp. Stat. (1897), before a mayor for a violation of an
6984. Consult also list of statutes ordinance was headed: " State of
cited supra, note 4, p. 973, and Form No. Iowa, City of Washington, v. Charles
6687, supra, and notes thereto. Smouse," it was held that the words
For the formal parts of affidavits, gen- " State of Iowa " were surplusage and
erally, consult the title AFFIDAVITS, did not make the prosecution one under
vol. i, p. 548. the state law. State v. Smouse, 49
2. Charging Part. See supra, note Iowa 634.
i, p. 932. 4. Charging Part. See supra, note
3. Texas. Code Crim. Proc. (1895), I, p. 932.
929 et sty. See also Form No. 6717, Indiana. In Schwab v. Madison, 49
supra, and notes thereto. Consult also Ind. 329, the complaint before the
list of statutes cited supra, note 4, mayor was as follows:
p 973. " The State of Indiana, \
For the formal parts of affidavits, gen- Jefferson County, ss. >
ally, consult the title AFFIDAVITS, vol. The City of Afadison. )
i, p. 548. Before me, John Marsh, mayor of the
Title. Where an information in Iowa city of Madison and ex officio a justice
5 E. of F. P. 62. 977 Volume 5.
6725.
CRIMINAL COMPLAINTS.
6725.
such cases made and provided, and against the peace and dignity of
the state.
Richard Roe.
Sworn to and subscribed before me by said Richard Roe, this fifth
day of March, A. D. \W8.
William M. White,
Mayor of the Town of Fairfield, Freestone County, Texas.
of the peace in and for said city and
county, personally came John IV. Gray-
son, who, being duly sworn, deposeth
and saith that, on the i8th day of Decem-
ber, l87j>, at said city and county, Will-
iam Schwab, as affiant very believes,
did commit an act of public indecency
in Spring Dale Cemetery Graveyard.
John W. Grayson.
Subscribed and sworn to this iSth
day of December, i8/j.
John Marsh,
Mayor and ex officio
Justice of the Peace."
It was held in this case that the com-
plaint was so defective that the prose-
cution might have been dismissed on
that account. No copy of the ordi-
nance, or section of the ordinance vio-
lated, was set out in the affidavit, as is
required; nor did the affidavit conform
to the law by stating the number f
the section charged to have been vio-
lated, as required by law. Schwab v.
Madison, 49 Ind. 331 citing, Green v.
Indianapolis, 22 Ind. 192, 25 Ind. 490;
Whitson v. Franklin, 34 Ind. 392.
Michigan. In Napman v. People,
19 Mich. 352, defendant was charged
before the recorder's court of the city of
Detroit on the complaint of Patrick
Keenan, " that at the city of Detroit,
aforesaid, on the seventeenth day of
April, A. D. one thousand eight hun-
dred and sixty-eight, within the cor-
porate limits of said city, one John
Napman, a duly licensed omnibus
agent, on the arrival of railroad cars
in the city of Detroit, did then and
there unlawfully and wilfully approach
within twenty feet of the depot, when
said cars had stopped running, within
fifteen minutes thereafter, said John
Napman, omnibus agent as aforesaid,
not being requested by any person to
remove any trunk or other baggage
from said depot, to the evil example of
all others in like case offending, and
contrary to the ordinances of said city
of Detroit, in such case made and pro-
vided." This complaint was held to
be defective in not averring that the
defendant was then acting in the ca-
9
pacity of porter or runner for a hotel.
Napman v. People, 19 Mich. 352.
Missouri. In Marshall v. Standard,
24 Mo. App. 194, the defendant was
charged with the violation of an ordi-
nance of the city of Marshall. The
complaint was made by the city mar-
shal, and was verbal, the defendant
being at the time in court and under
arrest. The charge entered of record
by the mayor was as follows: "June
20, 1885, Joseph W. Bartlett, city mar-
shal, informs the mayor that at the city
of Marshall, on the twentieth day of
June, 1885, one Geo. W. Standard, now
in court and in custody, did then and
there forcibly oppose a policeman, to
wit, Phillip Coiner, deputy marshal of
the city of Marshall, in making the
lawful arrest of Abe Allenberg, and then
and there did aid the said Abe Allenberg,
the person arrested, to escape from
said Phillip Coiner, policeman afore-
said; contrary to the form of the
ordinances of said city, and against the
peace and dignity of said city and
the state of Missouri." It was held,
the allegation " contrary to the form
of the ordinances of said city " was too
indefinite, as from such statement it
would not be known under what
particular ordinance defendant was
charged.
The complaint in the recorder's court
in Missouri is similar to that made be-
fore the chairman of the board of
trustees in villages. Mo. Rev. Stat.
(1889), 1555. See also supra, Form No.
6720.
North Carolina. In State v. Eason,
114 N. Car. 788, the affidavit before the
mayor, omitting the formal parts as
amended, was as follows: "On the 2ist
day of September, i8<?j>, before me, E. M.
Short, mayor of Washington, N. C., per-
sonally appeared J. R. Christ, who be-
ing duly sworn, complains on oath and
says, that Charles Eason, on the 2oth
of September, i80j>, did unlawfully and
wilfully throw dead fish in the Pamlico
river, in said town, in violation of the
town ordinance No. //, of the town of
Washington, in force in said town, con-
78 Volume 5.
6726.
CRIMINAL COMPLAINTS.
6727.
e. Municipal Court.
Form No. 6726.'
Commonwealth of Massachusetts.
To the Justices of the Municipal Court of the Charlestown District,
holden in said district in the city of Boston, for the transaction of
criminal business within and for the county of Suffolk.
Richard Roe, of Boston, in the county of Suffolk, deputy state con-
stable, on behalf of the Commonwealth of Massachusetts, on oath
complains that one John Doe, of Boston, in the county of Suffolk, did
on the tenth day of March, in the year of our Lord one thousand eight
hundred aud ninety-six, at the city of Boston, within the judicial
district of said court in the county of Suffolk, with force and arms,
{Here state the offense committed and the facts constituting the offense
charged}, 2 against the peace of said commonwealth and the form of
the statute made and provided.
Richard Roe.
Suffolk, ss. Received and sworn to the eleventh day of March, in
the year of our Lord one thousand eight hundred and ninety-six,
before said court.
John Hancock, Clerk.
f. Police Court. 3
trary to the statute in such case made
and provided, and against the peace
and dignity of the state."
Ohio. A form of an affidavit in
criminal proceedings before a mayor is
set out in Bates' Anno. Stat. (1897),
7135.
Oregon. In Nodine v. Union, 13
Oregon 587, it was held that in a prose-
cution for the violation of a city ordi-
nance prior to the act of February 25,
1885, in the recorder's court, it was not
sufficient to merely refer to the ordi-
nance by number, but the ordinance
should be set out or recited.
Vermont, In States. Bacon, 40 Vt.
456, the complaint before the recorder
of the city of Burlington is set out in
full. The complaint was, however,
held to be insufficient for want of
substance.
1. Massachusetts. Pub. Stat. (1882),
c. 154. See also supra, Form No. 6681,
and notes thereto. Consult also list of
statutes cited supra, note 4, p. 973.
For the formal parts of affidavits, gen-
erally, consult the title AFFIDAVITS,
vol. i, p. 548.
2. Charging Part. See supra, note
i, p. 932-
Minnesota. In State v. Segel, 60
Minn. 507 the defendant was convicted
in the municipal court of Minneapolis
of dealing in second-hand goods with-
out a license, in violation of a city or-
dinance, upon a complaint that he
" unlawfully and wrongfully engaged
in the business and occupation of
dealer in second-hand goods, to wit,
second-hand furniture, carpets, stoves,
and divers other articles and things,"
at a certain place in the city without
having first obtained a license so to do.
The conviction was sustained on ap-
peal.
3. A police informing officer's complaint
in Vermont may be as follows:
" State of Vermont, \ To Abraham
Windham County, ss. \ Kent, Esquire,
one of the justices of the peace within
and for the county of Windham, comes
Clyde Gulp, police informing officer
within and for Bellows Falls Village
Corporation, in the town of Rocking ham
in said county, in his own proper per-
son, and on his oath of office complaint
makes that, on the second day of March,
A. D. i8?<?, within the limits of said Bel-
lows Falls Village Corporation, John Doe,
late of the said Bellows Falls Village Cor-
poration (Here state the offense charged
and the facts constituting the same), con-
trary to the form, force and effect of
the statute in such case made and pro-
979
Volume 5.
6727. CRIMINAL COMPLAINTS. 6728.
Form No. 6727.'
State of Colorado, }
County of Park, V ss. In Police Magistrate's Court.
Town of Fair Play. )
The People of the State of Colorado \
against
John Doe, defendant. )
Richard Roe, being duly sworn, on his oath says that section three of
ordinance No. ten of the town of Fair Play, being an ordinance entitled
"An Ordinance (giving title of ordinance) passed and approved the
second day of January, A. D. i &98, has been violated, and that this
affiant has good reason to believe that John Doe is guilty thereof, in
this : That the said John Doe, on or about the first day of March, A. D.
i898, at the town of Fair Play, in the county of Park, and state of
Colorado (Here state the facts constituting the violation of the ordi-
nance)? against the peace and dignity of the people of the state of
Colorado?
Richard Roe.
Subscribed and sworn to before me this fifth day of March, A. D. iS98.
Peter Morrison, Police Magistrate. (SEAL)
Form No. 6728.*
State of Illinois, }
Green County, > ss.
City of Carrollton. }
Richard Roe, of said city of Carrollton, being duly sworn, on oath
vided, and against the peace and dig- ordinance which provided that " no
nity of the state. person shall be or remain upon any
Clyde Gulp, sidewalk, etc., to the annoyance of any
Police Informing Officer. person," etc., pursuing the very lan-
The witnesses in support of this com- guage of the ordinance, its literal terms
plaint are: embracing cases not within its equity
Banks Belk. and spirit, need not necessarily be suffi-
T. M. Hughes. cient. So held where the complaint
John Smith. alleged that Goulding, at Portsmouth,
Clyde Culp, on, etc., was and remained a long time
Police Informing Officer. upon the sidewalk on the northerly side
The within complaint was exhibited of Market square, in said Portsmouth,
to me this fifth day of March, A. D. to the annoyance and disturbance of
i8<?<?, and process then issued. all persons passing and repassing, con-
Abraham Kent, trary to the form of the ordinance in
Justice of the Peace." such case made and provided, contrary
1. Colorado. Mills' Anno. Stat. (1891), to the form of the statute, etc.
S 35oo et seq., 3525. See also supra, 3. Conclusion. The fact that the com-
Form No. 6666, and notes thereto, plaint in a justice or police court, for
Consult also list of statutes cited supra, misdemeanor, does conclude contrary
note 4, p. 973. to the provisions of a county ordi-
For the formal parts of affidavits, gen- nance, does not tend to prejudice the
erally, consult the title AFFIDAVITS, vol, substantial rights of the defendant, and
i, p. 548. the defendant may be punished under
2. Charging Part. See supra, note the penal code. Ex p. Mansfield, 106
i, p. 932. Cal. 400.
New Hampshire. In State v. Gould- 4. Illinois. Starr & C. Anno. Stat.
ing, 44 N. H. 284, a complaint, under an (1896), p. 720, p,ar. 69. See also supra,
980 Volume 5.
6729.
CRIMINAL COMPLAINTS.
6729.
complains and charges that one John Doe did on the second day of
March, A. D. 1 898, at the city of Carrollton aforesaid, violate a cer-
tain ordinance of said city concerning {Here insert title, number and
reference to ordinance, as well as the nature of the act or omission com-
plained o/), 1 and that he, the said Richard Roe, has reasonable grounds
to believe, and does believe, the said John Doe, charged as aforesaid,
to be guilty thereof as hereinbefore set forth.
Richard Roe.
Subscribed and sworn to this fifth day of March, A. D. i&98,
before me, Peter Morrison, Police Magistrate.
Form No. 6729.*
(Precedent in Matter of Dassler, 35 Kan. 678.)*
The State of Kansas, \
City and County of Leavenworth. \
The City of Leaven-worth )
r
C.F. W. Dassler. )
W. D. Shallcross, being duly sworn, deposes and says: That C. F.
W. Dassler is now and has been ever since January 1, i8&, a male
resident and citizen of said city of Leavenworth, and is now and was
during all of said time between the ages of twenty-one and forty-five
years, [and] a registered voter of said city, and that said Dassler
Police Court. Set.
Form No. 6673, and notes thereto.
Consult also list of statutes cited su-
pra, note 4, p. 973.
For the formal parts of affidavits,
generally, consult the title AFFIDAVITS,
vol. i, p. 548.
1. Charging Part. See supra, note
i, P- 932.
2. Kansas. I Gen. Stat. (1897), p.
364, 133 et seq., p. 424, 97 et seq., p.
465, 91 et seq. See also supra, Form No.
6676, and notes thereto.
Oklahoma. Stat. (1893), 609. See
also Form No. 6694, supra, and notes.
Consult also list of statutes cited
supra, note 4, p. 973.
For the formal parts of affidavits, gen-
erally, consult the title AFFIDAVITS,
vol. i, p. 548.
Liberal rules should be applied to com-
plaints filed in police courts for viola-
tion of city ordinances. The same
strictness of pleading is not required
in such cases as in prosecutions for
public offenses in the name of the state
by information or indictment. King-
man v. Berry, 40 Kan. 625.
When to be in Writing. When made
by the marshal, assistant-marshal, or
regular policeman, need not be in writ-
ing if the defendant be present in court
and in custody; but in every other case
the complaint shall be in writing and
sworn to. i Kan. Gen. Stat. (1897), p.
3 r '4, 137, P- 424, 102, p. 466, 99;
Oklahoma Stat. (1893), 609
3. This complaint was for a failure to
work upon the streets, alleys and
avenues of the city, or to pay a sum of
money in lieu thereof. Upon convic-
tion under this complaint, defendant
sought a discharge under a writ of
habeas corpus, which was refused and
the prisoner remanded. Matter of
Dassler, 35 Kan. 678.
4. Title of Proceeding. All prosecu-
tions for violating any city ordinance
shall be entitled: " The city of
against " (naming the city, and
the person, or persons, charged), and
the police judge shall state in the
docket the name of the complainant,
the nature and character of the offense,
the date of the trial, the names of all
witnesses sworn and examined, the
finding of the court, the judgment of
fine and costs, the date of payment, the
date of issuing commitment, if any,
and every other fact necessary to show
the full proceedings in such case. I
Kan. Gen. Stat. (1897), p. 364, 137,
p. 424, loi, p. 466, 98; Oklahoma
Stat. (1893), 609.
981
Volume 5.
6730. CRIMINAL COMPLAINTS. 6730.
unlawfully neglects and refuses to perform two days' labor, or any
part thereof, upon the streets, alleys and avenues of said city, and
also unlawfully neglects and refuses to pay to the street commis-
sioner of said city the sum of three dollars, or any part thereof, in
lieu of said labor, and has during all of the time since January 1, i8&,
so neglected and refused to perform said labor or pay said money in
lieu thereof, although duly notified in writing so to do by the street
commissioner of said city; 1 and further saith not.
W. D. Shallcross.
Sworn to before me, and subscribed in my presence, this 30th day
of December, 1884.
M. L. Hacker, Police Judge. 2
Form No. 6730.
(Precedent in Smith v. Emporia, 27 Kan. 529. ) 3
Co^nty^fz^,' |* Before /* A *r, Police Judge of said
City of Emporia. )
City of Emporia, plaintiff, )
v. \
F. E. Smith, defendant. )
T. Johnson, being first duly sworn, upon oath says, that the city of
Emporia is a city of the second class, duly organized under and by
virtue of the laws of the state of Kansas; that upon the J^th day of
August, i&81, within the corporate limits of said city, one F. E.
1. Charging Part. See supra, note in a police court see Junction City v.
i, p. 932. Keeffe, 40 Kan. 276.
In Kingman v. Berry, 40 Kan. 625, 2. Where the jurat to a complaint was
the complaint before a police judge, signed by the police judge without the
omitting the formal parts, was as fol- name of his office appearing, the error
lows: "y. W. Pettijohn, being duly did not invalidate the complaint, it
sworn, states on oath, that George F. appearing, on appeal, from the face
Berry, within the city of Kingman, of the transcript that the person who
county of Kingman, state of Kansas, signed the jurat was actually the police
did on the thirteenth day oijanuary, judge. Kingman v. Berry, 40 Kan.
iS<$y, unlawfully keep and maintain 625.
certain barrels of oil on Avenue A, 3. This complaint was in violation
near the corner of Maine street, North, of a certain ordinance, and was for
the same not being within three feet of breaking open the inclosure established
his said store building, being used by by the city as a pound, and unlawfully
him as a general store; contrary to the taking and driving therefrom animals
ordinances of the city of Kingman in therein impounded. The complaint
such cases made and provided." This was held to be sufficient. Smith v.
complaint was upheld as sufficient, Emporia, 27 Kan. 528. Consult anno-
though criticised for not being as tations to Form No. 6729, supra.
formal, full and precise in its allega- 4. Statement of Venue. A complaint
tions as it should have been. It did in a police court of a city of the second
not follow the language of the ordi- class for violation of one of the city
nance. As to its formal parts, however, ordinances sufficiently sets forth the
there were no defects except that the venue where, in the caption, the state,
police judge before whom the complaint county and city are named, and the
was sworn signed the jurat attached to complaint, in the body thereof, states
the same without including in the the name of the city, and alleges that
signature the name of his office. King- said city is a city of the second class,
man v. Berry, 40 Kan. 625. organized under and by virtue of the
For another precedent of complaint laws of the state, and that the defend-
982 Volume 5.
6731. CRIMINAL COMPLAINTS. 6731.
Smith, above named, defendant, then and there being, did break open
the inclosure established by said city as the city pound, and did take
and drive therefrom animals therein lawfully impounded, without
first paying the lawful officers' fees for the same; all contrary to an
ordinance of said city in such cases made and provided.
- T. Johnson.
Sworn to and subscribed before me, by T. Johnson, this 5th day
of August, i8<W.
James R. Barnes, Police Judge.
State of Michigan, ^
Form No. 6731.
(Precedent in People v. Bechtel, 80 Mich. 626.)'
County of Bay. j
The complaint and examination on oath in writing of Samuel M.
Cat/in, taken and made before me, Daniel Mangan, police justice of
the city of Bay City, in said county, upon September 11, A. D. i8#9,
who, being duly sworn, says that heretofore, to wit, on December 6,
A. D. iS89, at the city and in the county aforesaid, Fred Bechtel [was
then and there engaged in the business of selling and offering for
sale spirituous and intoxicating liquors, and malt, brewed, and fer-
mented liquors at retail, and, being so engaged in said business, he,
the said Fred Bechtel, did then and there, on said December 6, iS89,
unlawfully offer for sale spirituous and intoxicating liquors, and did
then and there unlawfully give and furnish spirituous and intoxicating
liquors, to wit, whiskey, to one Peter Tierney, he, the said Fred
Bechtel, not having then and there paid to the county treasurer of
said county the tax required by law for selling and offering for sale
spirituous and intoxicating, and malt, brewed, and fermented liquors,
and he, the said Fred Bechtel, not being then and there a druggist,
nor any person whose business consists, in whole or in part, of the
sale of drugs and medicines, and the liquors so sold and given and
furnished as aforesaid not being then and there proprietary patent
medicine.] 2 All of which complainant has good reason to suspect,
and does suspect, contrary to the form of the statute in such case
made and provided, and against the peace and dignity of the people
of the State of Michigan; wherefore the said Catlin prays that the
said Bechtel may be apprehended and held to answer this com-
plaint, and further dealt with in relation to the same as law and jus-
tice may require.
Sam I M. Catlin.
Taken, subscribed, and sworn to before me the day and year first
above written.
Daniel Mangan, Police Justice.
ant, upon a day therein named, did, For the formal parti of affidavits, gen-
within the corporate limits of said city erally, consult the title AFFIDAVITS,
then and there being, commit the vol. i, p. 548.
offense charged. Smith v. Emporia, Need not be Reduced to Writing. Peo-
27 Kan. 528. pie v. Bechtel, 80 Mich. 623.
1. A conviction under this complaint 2. Charging Part. ~ See supra, note
was affirmed on appeal. People v. i, p. 932.
Bechtel, 80 Mich. 623.
983 Volume 5.
6732. CRIMINAL COMPLAINTS. 6733.
Form No. 6732.'
(Sanb. & B. Anno. Stat. (1889), p. 564, 69).
State of Wisconsin. ) *T *L r /- t -A -
City oi Milwaukee. \ SS ' In the Pohce Court of said Clt ?'
Richard Roe complains on oath to the police court of the city of
Milwaukee that John Doe did, as the deponent verily believes, on or
about the second day of March, A. D. iS98, at said city, violate an
ordinance of said city, to wit, {Here insert the title and date of the
ordinance, or the chapter and section of the general ordinance), in that
he did then and there, contrary to said ordinance {Here insert the act
or omission complained of) ; 2 Wherefore the complainant prays that
said John Doe be arrested and dealt with according to law.
Richard Roe, Complainant.
Subscribed and sworn to before me this fifth day of March, A. D.
1 89S.
Peter Johnson, Judge (or Clerk).
g. Probate Court.
Form No. 6733. 1
In the Probate Court of Shoshone County, State of Idaho.
State of Idaho, plaintiff, }
against [-Complaint Criminal.
John Doe, defendant. )
Personally appeared before me this fifth day of March, \W8,
Richard Roe, of Murray, in the county of Shoshone, who being duly
sworn, complains and says:
Thaty0/2# Doe, of Murray, on the second day of March, i898, at
Murray, in the county of Shoshone, and state of Idaho, did (Here
state offense charged and the facts constituting the same). 4 All of which
is contrary to the form of the statute in such case made and provided
and against the peace and dignity of the state of Idaho.
Said complainant therefore prays that a warrant may be issued for
the arrest of said John Doe, and that he may be dealt with according
to law.
Richard Roe.
Subscribed and sworn to before me this fifth day of March, i898.
John Pomeroy, Probate Judge.
1. Wisconsin. Sanb. & B. Anno. 3. Idaho. Rev. Stat. (1887), 8280.
Stat. (1889), 925^^ seq. See also supra, See also supra, Form No. 6672, and
Form No. 6706, and notes. Consult also notes thereto. Consult also list of
list of statutes cited supra, note 4, p. statutes cited supra, note 4, p. 973.
973. For the formal parts of affidavits, gen-
For the formal parts of affidavits, gen- erally, consult the title AFFIDAVITS,
erally, consult the title AFFIDAVITS, vol. i, p. 548.
vol. I, p. 548. 4. Charging Part. See supra, note
2. Charging Part. See supra, note I, p. 932.
I, P- 932.
984 Volume 5.
CRIMINAL CONVERSATION.
BY FRANCIS X. HENNFSSY.
I. COMPLAINT, DECLARATION OR PETITION, 985.
II. ANSWER OR PLEA, 989.
1. General Denial, 989.
2. Accord and Satisfaction, 990.
CROSS-REFERENCES.
For Forms in other Actions of similar character, see the titles ALIEN-
ATION OF AFFECTIONS, vol. i, p. 684; SEDUCTION.
For matters of Pleading and Practice, consult the title CRIMINAL
CONVERSATION, 5 ENCYCLOPEDIA OF PLEADING AND
PRACTICE, p. 616.
I. COMPLAINT, DECLARATION OR PETITION.!
1. Requisites of Complaint or Declara-
tion Generally. For the formal parts
of the complaint, petition or declara-
tion in a particular jurisdiction consult
the titles COMPLAINTS, vol. 4, p. 1019,
and DECLARATIONS.
Marriage Relation. The relation-
ship of husband and wife between the
plaintiff and seduced spouse at the
time of the criminal conversation must
be distinctly averred. Keppler v . Elser,
23 111. App. 643; Kibby v. Rucker, i
A. K. Marsh. (Ky.) 391; Perry v. Love-
joy, 49 Mich. 529; Hutchins v. Kim-
mell, 31 Mich. 126; Dann v. Kingdom,
i Thomp. & C. (N. Y.) 492; Morris v.
Miller, 4 Burr. 2057; Catherwood v.
Caslon, 13 M. & W. 261.
It is a sufficient allegation of mar-
riage in a complaint for criminal con-
versation with the plaintiff's wife to
aver that at the time she was de-
bauched she was his wife. Hauck v.
Grautham, 22 Ind. 53.
Criminal Intercourse. The criminal
intercourse must be substantially
averred. Perry v. Lovejoy, 49 Mich.
529-
Means. The means by which the in-
tercourse was effected need not be al-
leged, as the means is but an incident
to increase or mitigate the damages.
Bedan v. Turney, 99 Cal. 649; Walesa.
Miner, 89 Ind. 118.
Scienter. It need not be alleged that
the defendant knew of the marriage
relation. Wales v. Miner, 89 Ind. 118.
Place is not of the essence of the ac-
tion and need not be alleged, and if al-
leged, the averment is treated as formal
merely and it need not be proved.
Long v. Booe, 106 Ala. 570.
Time. The complaint may, as in
actions of trespass, lay the time of the
alleged wrongful acts with a continu-
ando, and the evidence may be directed
to any time within that covered by the
complaint. Lemmon v. Moore, 94 Ind.
40; and see also Yatter v. Miller, 61 Vt.
147; Johnston v. Disbrow, 47 Mich. 59.
But it seems that when time and place
are not alleged with particularity it is
in the discretion of the court to order a
bill of particulars. Shaffer v. Holm,
28 Hun (N. Y.) 264; Tilton v. Beecher,
59 N. Y. 176. In the latter case it was
held that plaintiff's affidavit was sub-
stantially equivalent to a bill of particu-
lars, as it contained everything which
a defendant could properly seek to learn
by means of a bill. The affidavit was
as follows:
" City of Brooklyn, Kings County, ss.
Theodore Tilton, the above named
plaintiff, being duly sworn, deposes:
That the sum total of the knowledge
possessed by him of the sexual inter-
course between Henry Ward Beecher
985
Volume 5.
6734.
CRIMINAL CON VERSA TION.
6734.
and Elizabeth R. Tilton, and of the times
and places thereof, consists as follows:
First: Confessions of the said sex-
ual intercourse made by Henry Ward
Beecher to Francis Z>. Moulton, Emma ft.
Moulton and Theodore Tilton, and others.
Second: Confessions of the said sex-
ual intercourse made by Elizabeth R.
Tilton to Emma R. Moulton, Martha B.
Bradshaw, Florence Tilton, Theodore Til-
ton, and others.
Third: Written and printed papers,
documents and letters by Henry Ward
Beecher.
Fourth: Written and printed papers,
documents and letters by Elizabeth R.
J^ilton.
Fifth: Written and printed papers,
documents and letters by other persons.
Sixth: Acts, declarations and con-
duct by said Henry Ward Beecher and
said E. R. Tilton, respectively, tending
to prove such sexual intercourse, with-
out locating it in any time or place.
Seventh: And various circumstances
not amounting to direct proof, derived
from the acts, oral declarations, and
written papers and documents of the
said Henry Ward Beecher and of other
persons, communicated to him, and
admissible against him.
And the deponent further says that
the aforesaid confessions, made to
others than this deponent, did not, to
this deponent's knowledge, nor did any
or either of them, specify any time
when or place where any sexual inter-
course between the said defendant and
the wife of this plaintiff occurred.
That the confession so made to this
defendant named but two specific oc-
casions and but two places when and
where such intercourse was had, name-
ly, the one at the house of said defend-
ant, in the city of Brooklyn, on the loth
day of October, i86<?, and the other at
the house of this plaintiff on the ifth
day of October, i&6$.
But this deponent is not absolutely
certain that the above are the precise
dates given by said confessions, but is
positive that they were about and very
near to those two days.
Nor is this deponent positive that the
places assigned to these dates were as
above stated, it being possible that the
intercourse stated above as occurring
on the loth October, \%68, may have
been at the house of this deponent, and
that on the ijth October, i86<?, at the
house of the defendant.
And this deponent further says that
the confessions so made to him ad-
mitted various acts of adultery by the
said defendant with the said wife of
this deponent between the said joth of
October, i8<W, and the spring of 1870,
but did not particularize any time or
place otherwise than as above stated.
That this deponent does not expect
to be able on the trial of this action to
prove by any eye-witness any such
intercourse, or to prove any definite
time or place when or where such inter-
course occurred, except by the confes-
sions aforesaid, and that the only proof
of the adultery charged by the com-
plainant within the control or knowl-
edge of this deponent, or which he
expects to be able to offer upon the said
trial, are as above set forth; and this
deponent is unable to furnish any
further or other statement ' of the par-
ticular times or places at which he ex-
pects or intends to prove that any such
acts of adultery or criminal intercourse
took place between the defendant and
the wife of the plaintiff,' than is above
given.
And this deponent respectfully says
than any order for particulars as prayed
by this motion which shall preclude
this deponent from maintaining this
action by proof of confessions, acts and
declarations, and other testimony tend-
ing to prove the adultery named in the
complaint, although such evidence may
not the time and place of its commis-
sion, would deprive this deponent of
material testimony, and, as he is ad-
vised by his counsel, and believes,
would injuriously and unjustly restrict
his legal rights, and he therefore re-
spectfully prays and insists, in case this
court should grant any order for par-
ticulars, that a clause may be inserted
therein to the following effect, viz:
But this order is not to be so construed
or applied as to prohibit the plaintiff on
the trial of this action from introducing
evidence of confessions, acts, declara-
tions, writings and documents which
may be admissible under the general
rules of evidence as if this order had
not been made, and which do not in
terms refer to any particular act or time
of adultery, but proving by such
evidence the adulterous intercourse
charged in the complaint, although
it may not thereby appear to have been
committed on any particular day or at
any particular place.
Theodore Tilton.
Sworn to before me this loth day of
Dec., 187^.
Geo. W. Roderick, Notary Public."
986
Volume 5.
6734. CRIMINAL CONVERSATION. 6735.
Form No. 6734.
(9 Wentw. PI. i3.)>
In the Kings Bench.
Trin. Term, 51 Geo. III.
London, to wit. Isaac Loring, late of the parish of St. Paul, Covent
Garden, was attached to answer Israel Harkness in a plea, wherefore
with force and arms he made an assault upon Ellen Harkness the
wife of the said plaintiff, at London aforesaid, to wit, in the parish of
St. Paul, Covent Garden, and did ravish, lye with, debauch, and car-
nally know the said Ellen Harkness, whereby the said plaintiff lost and
was deprived of the comfort, fellowship, and society of his said wife,
and other wrongs to the said plaintiff then and there did to the great
damage of the said plaintiff, and against the peace of our lord the
now king, whereupon the said plaintiff, by Jeremiah Mason his attor-
ney, complains, for that the said defendant on the tenth day of June,
A. D. 1799, and on divers other days and times, between that day and
the day of suing out the original writ of the said plaintiff, with force
and arms at the parish of St. Paul, Covent Garden, in London aforesaid
made an assault on the said Ellen Harkness the wife of the said
plaintiff, and at those several days and times did debauch and car-
nally know the said Ellen Harkness, whereby the said plaintiff lost
and was deprived of the comfort, fellowship and society of his said
wife for all the time aforesaid, and other wrongs to the said plaintiff
then and there did, to the great damage of the said plaintiff and
against the peace of our lord the now king, whereupon the said
plaintiff saith that he is injured and hath sustained damage to the
value of one thousand pounds; and therefore he brings his suit, etc.
Form No. 6735.
(Conn. Prac. Act, p. 75, No. no.)*
(Commencement of writ as in Form No. 5912.)
1. Precedents. In 2 Humph. Prec. there alienated and destroyed, and also,
780, the declaration, omitting formal by means of the premises, he the said
parts, is as follows: Alfred Brown had thence hitherto
"For that whereas the said Charles wholly lost and been deprived of the
Davis, contriving, and wrongfully, comfort, fellowship, society, aid and
wickedly and unjustly intending to in- assistance of the said Ellen Brown
jure the said Alfred Brown, and to de- his said wife, in his domestic affairs,
prive him of the comfort, fellowship, which he the said Alfred Brown during
society, aid and assistance of Ellen all that time ought to have had. and
Brown, the wife of him the said Alfred otherwise might and would have had,
Brown, and to alienate and destroy her to wit, at, etc."
affections for him, the said Alfred For other precedents see 1 illingh.
Brown heretofore, to wit: on, etc., and Forms, p. 415; I Saunds. PI. 395.
divers other days and times between 2. Florida. In Fla. Rev. Stat. (1892),
that day and the day of exhibiting this 1058. subs. 24, the declaration, omit-
bill, at, etc., wrongfully, wickedly, and ting the formal parts, is as follows:
unjustly debauched and carnally knew "That the defendant debauched and
the said Ellen Brown then and there, carnally knew the plaintiff's wife.'
and still being the wife of him the said Maryland. In Md. Pub. Gen. Laws
Alfred Brown, and thereby the affec- (1888). p. 1103, 30, the same form is
tion of the said Ellen Brown for him given,
the said Alfred Brown was then and
987 Volume 5.
6736. CRIMINAL CONVERSATION. 6736.
1. Jane Smiles is, and for more than five years last past has been,
the wife of the plaintiff.
2. The defendant, on March llth, i87#, and on divers other days
since that date, seduced and carnally knew said Jane Stiles.
3. In consequence of said seduction, the plaintiff has lost the
affection of said Jane Stiles, and has been deprived of her society,
and assistance, which he otherwise would have had, and has suffered
great distress of body and mind.
The plaintiff claims $10,000 damages.
(Conclusion as in Form No. 5912. )
Form No. 6736.
(Precedent in Wales v. Miner, 89 Ind. 119.)'
[State of Indiana, \ Union Circuit Court.
Union County. ] October Term, iS81.
John Miner, plaintiff,
against
James Wales, defendant.
John Miner, plaintiff, complains of James Wales, defendant, and
says] 2 that Eglantine Miner was on the 18th day of October, i881, the
lawful wife of the plaintiff, and had been for a long time previous
thereto, and was at the time hereinafter mentioned; that the defend-
ant contriving and wrongfully and maliciously intending to injure the
plaintiff, and to deprive the plaintiff of the comfort, fellowship and
assistance of his said wife, Eglantine Miner, and to alienate and
destroy her affections for him, the defendant, on the .fa/day of Janu-
ary, i87#, and on every day since, until the 18th day of October, i881,
at the county of Union and State of Indiana, wrongfully and wickedly
persuaded, seduced, debauched, and carnally knew the said Eglantine
Miner, the then wife of plaintiff, who was his said wife at, between
and upon all the time between the said 1st day of January, i87#, and
the 18th day of October, i881; and thereby did seduce her affections,
the said Eglantine Miner, and alienate from him the said plaintiff,
and that thereby her affections were then and there alienated and
destroyed. That by means of the premises the plaintiff from that
time to the said 18th day of October, i881, has been wholly deprived
of the comfort, fellowship, society, aid and assistance of the said
Eglantine Miner, his then wife, in his domestic affairs, which during
all that time he ought and would otherwise have had, to his damage
1. This form is the first paragraph of injuries that may result. It is in no
plaintiff's complaint. It was held no case necessary that before the action
objection to this paragraph that it does will lie the guilty man must be charged
not aver that when the alleged seduc- in the complaint with having at the
tion occurred the defendant knew that time of the seduction actual notice or
Eglantine Miner was the wife of the knowledge of the domestic relations of
plaintiff. When a man engages in the the seduced.
practice of illicit intercourse with a wo- 2. The words and figures enclosed
man, he is bound to take notice of her by [ ] will not be found in the reported
domestic relations and takes the haz- case, but have been added to render the
ard of being held responsible for any form complete.
988 Volume 5.
6737. CRIMINAL CONVERSATION. 6738.
$15,000, for which sum he sues and demands judgment and for gen-
eral relief.
[J. IV. Connaway,
T. D. Evans,
Plaintiff's Attorneys.] 1
Form No. 6737.
Supreme Court, Suffolk County.
John Doe, plaintiff, \
against
Richard Roe, defendant. )
The complaint of the above named plaintiff respectfully shows to
this court that Jane Doe is, and at the times hereinafter mentioned
was, the wife of this plaintiff. That on the first day of May, i897,
while the plaintiff and said Jane Doe were living happily together
as man and wife, the defendant wrongfully contriving and intending
to injure the plaintiff, and to defraud him of the affection and society
of his said wife, Jane Doe, at the village of Northport in said county,
wickedly, wilfully and maliciously debauched and carnally knew the
said Jane Doe without the privity or consent of this plaintiff. That
by reason of the premises, the plaintiff was deprived of the comfort,
society, aid and assistance which he otherwise would have had from
the said Jane Doe, and has suffered great distress of body and mind,
to his damage five thousand dollars.
Wherefore plaintiff demands judgment against said defendant for
said sum of five thousand dollars and all costs and expenses of this
action.
Jeremiah Mason, Plaintiff's Attorney.
II. ANSWER OR PLEA. 2
1. General Denial.
1. The words enclosed by [ ] will her, and finally had put her away from
not be found in the reported case, but him by force and threatened to put
have been added to render the form her to death if ever she returned to
complete. him, so that she was in danger of her
2. For the formal parts of an answer life and did live apart from him per-
or plea in a particular jurisdiction con- manently.
suit the titles ANSWERS IN CODE PLEAD- Secondly, that long before the com-
ING. vol. I, p. 799, and PLEAS. mitting of the said pretended trespass.
Plaintiffs Misconduct. In Patterson the plaintiff's wife had, while living
v. McGregor, 28 U. C. Q. B. 280, the separate from him as aforesaid, on ac-
following pleas were held a good de- count of the plaintiff's adultery and
fense: cruelty aforesaid, applied for and ob-
i. That long before the committing tained an order for protection, accord-
of the pretended trespass in the declara- ing to the statute in such case made
tion set forth, the plaintiff had been and provided, after the plaintiff had
guilty of adultery with one Isabella received due notice of the application
Lowe, on whom he had begotten a therefor, which order was duly regis-
child now living with the plaintiff, and tered, and has ever since been and now
had continually treated his wife with is in full force and effect, by reason
intolerable cruelty, and had frequently whereof the plaintiff lost all claim to
used severe personal violence toward the comfort and society of his wife.
989 Volume 5.
6738. CRIMINAL CONVERSATION. 6739.
Form No. 6738.'
Supreme Court.
Peter Smith, plaintiff.
against
John O'Brien, defendant.
The defendant, John O ' Brien, in answer to the complaint in this
action, denies each and every allegation therein, except the allega-
tion that Mary Smith is the wife of the plaintiff, Peter Smith, as the
said defendant is informed and believes to be true.
John Gibney, Defendant's Attorney.
Address and post-office address, Sing Sing, N. Y.
2. Accord and Satisfaction.
Form No. 6739.
(9 Wentw. PI. 13.)
In the King's Bench.
Trin. Term, 51 Geo. III.
Richard Roe ~\
ats.
John Doe. )
And the said defendant, by Jeremiah Mason his attorney, comes
and defends the wrong and injury, when, etc., 2 and saith that he is
not guilty of the premises above laid to his charge in manner and
form as the said plaintiff hath above thereof complained against him,
and of this he puts himself upon the country, etc. ; and for further
plea in this behalf, the said defendant by leave of the court here for
this purpose first had and obtained according to the form of the
statute in such case made and provided, comes and defends the force
and injury, when, etc., 8 and says, the said John Doe ought not to have
or maintain his aforesaid action thereof against him, because he says
that after the said several times, when, etc., to wit, on the first day
of August, A. D. 1799, at the parish of St. Paul, Covent Garden, in
London aforesaid, it was mutually agreed by and between the said
defendant and the said plaintiff, that by way of atonement and satis-
faction for the said several trespasses and all damages sustained by
the said plaintiff on occasion thereof, the said defendant should at his
own proper costs and charges maintain and keep a certain child of
him, the said plaintiff, begotten on the body of his said wife; and the
said defendant in fact further says, that in pursuance of the said
agreement, he the said defendant at his own proper costs and
charges hath from thence hitherto maintained and kept, and still
maintains and keeps the said child, to wit, at the parish of St. Paul
aforesaid, and this the said defendant is ready to verify, wherefore
he prays judgment if the sav^ John Doe ought to have or maintain
his aforesaid action thereof against him, etc.
1. This form is copied from the rec- CONVERSATION, 5 Encyclopaedia of
ords in Smith v. O'Brien, 127 N. Y. 684. Pleading and Practice, p. 616.
As to what can be shown under the 2. See vol. 2, p. 109, note 2.
general denial, see the title CRIMINAL
990 Volume 5.
CROSS-BILLS.
See the title BILLS IN EQUITY, vol. 3, p. 417.
CROSS-COMPLAINTS.
I. IN GENERAL, 991.
II. ANSWER AND CROSS-PETITION, 993.
CROSS-REFERENCES.
For Forms of Answers, generally, see the title ANSWERS IN CODE
PLEADING, vol. i, p. 799.
For Forms of Complaints, generally, see the title COMPLAINTS, vol.
4, p. 1019.
For Forms of Corresponding Pleading in Equity, see the title BILLS
IN EQUITY, vol. 3, p. 468.
For Forms connected with Set-off and Counterclaim, see the title SET-
OFF AND COUNTERCLAIM.
For matters of Procedure, see the title CROSS-COMPLAINTS, 5
ENCYCLOPEDIA OF PLEADING AND PRACTICE, p. 673.
ss.
I. IN GENERAL. 1
Form No. 6740.
Posey Circuit Court.
October Term, iS97.
State of Indiana, \
Posey County. )
Jane Doe, plaintiff,
against
John Doe, defendant.
1. In General. In several states it is
provided that whenever the defendant
seeks affirmative relief against any
party, relating to or depending upon the
contract or transaction upon which the
action is brought, or affecting the prop-
erty to which the action relates, he
may, in addition to his answer, file at
the same time, or by permission of the
court subsequently, a cross-complaint.
The cross-complaint must be served
upon the parties affected thereby, and
such parties may demur or answer
thereto as to the original complaint.
Arkansas. Sand. & H. Dig. (1894),
5712.
California. Code Civ. Proc. (1897),
442.
Idaho. Rev. Stat. (1887), 4188.
Iowa. Code (1897), 3176, 3574.
Utah. Rev. Stat. (1898), 2974,
And in Hopkins v. Oilman, 47 Wis.
581, quoted in a note to Sanb. & B.
Anno. Stat. Wis. (1889), 2656, it was
said: "The code is silent respecting
cross bills or complaints. It neither
authorizes nor prohibits the filing of a
cross-complaint in a case wherein a
991
Volume 5.
6740.
CR OSS- COMPLAIN TS.
6740.
The defendant, for a cross-complaint against the plaintiff herein,
says:
[That defendant and plaintiff were duly married on the first day of
June, i85, and lived together as husband and wife until the ^r-tf day
of May, i&97; that plaintiff committed the crime of adultery with one
Samuel Short, on or about the first day of April, i87, and that, as
soon as defendant discovered that plaintiff had committed said
offense, he ceased to cohabit with her.] 1
cross-bill formerly would have been
proper. Under the ample provisions of
the code respecting counterclaims, it
seems a cross bill or complaint is no
longer necessary or proper in case of a
mere cross-demand or claim for affirma-
tive relief, existing in favor of one or
more defendants against the plaintiff in
the action alone, as in such case the de-
fense can, and should, always be set up
in the answer by way of counterclaim
and the whole matter litigated and de-
termined in one action. But there may
be cases, under the code, in which a
cross-action is not only proper but
necessary, in order to enable a defend-
ant to bring his defense properly before
the court, and to settle equities existing
between him and his codefendants.
Thus, in Thursby v. Mills, i Code Rep.
(N. Y.) 83, it was held that, in order to
enable a defendant to obtain an injunc-
tion, he must serve a complaint in the
nature of a cross-suit, unless where the
defendant's right to an injunction ap-
pears from the original complaint."
And that a cross-complaint may be
used in Indiana, although the statute
contains no provision relating thereto,
see the cases cited infra, note i,
p. 992.
The chief difference in the statutes
cited above consists in the parties
against whom relief may be had by the
cross-complaint. Thus, in Utah, relief
can be had against a codefendant only,
and in Arkansas and Iowa against any
person other than the plaintiff.
Complaint and Cross-complaint Distin-
guished. The only real difference
between a complaint and a cross-com-
plaint is, that the first is filed by the
plaintiff and the second by the defend-
ant. Both contain a statement of the
facts, and each demands affirmative re-
lief upon the facts stated. Ewing v.
Patterson, 35 Ind. 326, quoted in Con-
ger v. Miller, 104 Ind. 594.
1. Ground of Belief. The cross-com-
plaint, like an original complaint, must
state facts sufficient to entitle the
pleader to affirmative relief. Winter v.
McMillan, 87 Cal. 263; Stratton v. Cali-
fornia Land, etc., Co., 86 Cal. 353;
Peabody v. Prince, 78 Cal. 511; Harri-
son v. McCormick, 69 Cal. 618; Coult-
hurstz.-. Coulthurst,s8 Cal. 239; Brodrib
v. Brodrib, 56 Cal. 566; Kreichbaum v.
Melton, 49 Cal. 55; Collins v. Bartlett,
44 Cal. 381; Marriott v. Clise, 12 Colo.
561; Murray v. Hobson, 10 Colo. 66;
Norris v. Norris, 3 Ind. App. 500; Wood
v. Hughes, 138 Ind. 179; Holland v.
Holland, 131 Ind. 196; Kempshall v.
East, 127 Ind. 320; Conger v. Miller,
104 Ind. 592; Gardner v. Fisher, 87 Ind.
375; Masters v. Beckett, 83 Ind. 595;
Shoemaker v. Smith, 74 Ind. 71; Ewing
v. Patterson, 35 Ind. 326. And see
Scheiffelin v. Weatherred, 19 Oregon
172.
And it cannot be helped out by the
averments of any of the other pleadings
in the action. Coulthurst v. Coult-
hurst, 58 Cal. 239; Kreichbaum v. Mel-
ton, 49 Cal. 55; Conger v. Miller, 104
Ind. 592; Masters v. Beckett, 83 Ind.
595. Nor by an agreed statement of
facts. Collins v. Bartlett, 44 Cal. 381.
Yet in matters of mere description it
may refer to and adopt some of the
allegations of the complaint. Ander-
son -v. Wilson, 100 Ind. 402; Gardner v.
Fisher, 87 Ind. 375; Cookerly v. Dun-
can, 87 Ind. 332; Coe v. Lindley, 32
Iowa 437. Thus a description in a
cross-complaint in an action to quiet
title, designating it as the real estate in
the complaint mentioned, is sufficient.
Such a reference is not intended to sup-
ply a needed statement of fact, but is
for identification only. Cookerly v.
Duncan, 87 Ind. 332. Nor is it neces-
sary to set out in a cross-complaint a
copy of a written instrument which
forms the basis of the original action;
it being sufficient for the cross-com-
plaint to refer to such instrument.
Gardner v. Fisher, 87 Ind. 369; Coe v.
Lindley, 32 Iowa 437.
Where the defendant has two sepa-
rate rights, instead of setting them up
in the form of two cross-complaints,
they should be stated separately in one
992
Volume 5.
6741. CROSS-COMPLAINTS. 6742.
Wherefore he prays judgment that [the said bonds of matrimony be
dissolved, and a divorce granted in favor of this defendant.] 1
Jeremiah Mason, Defendant's Attorney.
Form No. 6741.
(Conn. Prac. Act, p. 192, No. 335.)*
John Doe \ Superior Court,
vs. New Haven County,
Richard Roe and John Fen. ) January Term, i870.
Cross-complaint of John Fen, against John Doe and Richard Roe.
1. After the defendant Richard Roe made the note and mortgage in
the original complaint described, he sold and conveyed, by a proper
deed, his interest in the mortgaged premises to this defendant,
John Fen.
2. On June 1st, iS78, when said note fell due, and before the com-
mencement of the plaintiff's said action, and after notice to him of
said conveyance, this defendant tendered to the plaintiff the full
amount due on said note, with interest, being in all $10,600, in pay-
ment thereof, and the plaintiff refused to accept the same.
3. This defendant has ever since been, and now is, ready and
willing to pay said sum to the plaintiff, or into court for his use.
This defendant claims a conveyance to himself from the plaintiff
of the mortgage title, on tender or payment into court by this defend-
ant of $10,600.
By Jeremiah Mason, his attorney.
II. ANSWER AND CROss-PErmoN. 3
cross-complaint, to avoid confusion, the answer it maybe styled a " cross-
Van Bibber z/. Hilton, 84 Cal. 585. petition."
1. Prayer for Relief. The cross-corn- Ohio. Bates' Anno. Stat. (1897),
plaint, like the original complaint, must 5059.
contain a prayer for relief. Ringo v. Wyoming. Rev. Stat. (1887), g 2446.
Woodruff, 43 Ark. 469; Sylvis v. Sylvis, And see Okla. Stat. (1893), g 3972;
II Colo. 331. But a cross-complaint Tucker v. St. Louis L. Ins. Co., 63 Mo.
which states a cause of action in favor 588.
of the defendant is not insufficient on In Kentucky it is provided that no
demurrer for want of facts merely be- pleading except an answer to an
cause it demands more relief than the original petition, or the plaintiff's reply
defendant is entitled to. Markz/. Mur- to such answer, shall be made a cross-
phy, 76 Ind. 534. petition. Bullitt'sCiv. Code Ky. (1895),
2. In Connecticut the cross-complaint 111. See also | 96.
differs from an ordinary complaint in In Georgia it is provided that "A
that the ordinary complaint is inserted petition in the nature of a cross-bill
in the writ, while the cross-complaint, need not be filed in this state. The de-
being in the nature of an answer, is not fendant in every case may set up in
so inserted, but is filed separately. For his answer any matter which, under
rules relating to cross-complaints in the English practice, should be the sub-
Connecticut see Rules Under Practice ject of a cross-bill, and may require
Act, No. 5. For other forms of cross- therein any discovery from the peti-
complaints in Connecticut see Conn, tioner he may desire. No supplemental
Prac. Act, p. 193, No. 336, p. 194, No. petition need be filed in this state. AH
337. such matter shall be allowed by way
3. In some states it is provided that of amendment. If new parties are
when affirmative relief is demanded in necessary, by reason of any matter
5 E. of F. P. 63. 993 Volume 5.
6742.
CROSS COMPLAINTS.
6742.
Form No. 6742.'
The State otOhio, ) j h c f c pl
Vtnton County, ss. \
John Doe, plaintiff, )
against > Answer and Cross-petition.
Richard Roe, defendant. )
The plaintiff, on the first day of May, iS97, for valuable considera-
tion, duly executed and delivered to defendant his agreement in
writing whereby, in consideration of fifty dollars, he agreed to
convey said premises to the defendant. The defendant has duly
performed all the conditions of said agreement on his part to be per-
formed, but the plaintiff neglects and refuses to convey said premises
to defendant. 2
Wherefore defendant prays that plaintiff, in accordance with said
agreement, be ordered to convey said premises to defendant, and
that he be forthwith enjoined from prosecuting this suit further. 3
Jeremiah Mason, Attorney for Defendant.
( Verification^
thus set up in the answer, or by way of
amendment, the court shall give such
direction to the cause, to secure a hear-
ing to such parties, as if a petition in
the nature of a cross-bill or supple-
mental bill had been filed." 2 Ga.
Code (1895), 4969.
The cross-petition in these states need
not be joined with a denial of the
allegations of the petition, but may con-
sist of purely affirmative matter. Brad-
ford v. Andrews, 20 Ohio St. 221.
In other states it is held that a single
paragraph of the defendant's pleading
cannot be both an answer and a cross-
complaint; and where it is treated
below both by court and counsel as a
cross-complaint, it will be so considered
by the supreme court. Shain v. Belvin,
79 Cal. 262; Anderson Bldg., etc., Assoc.
v. Thompson, 88 Ind. 405; Thompson v.
Toohey, 71 Ind. 296; State Board of
Agriculture v. Gray, 54 Ind. 91. And
that if a defendant has a cause of
cross-complaint, and wishes affirma-
tive relief, his pleading should show
distinctly that it was intended as a
cross-complaint. If it commences as
follows: "And for a further and sepa-
rate answer and defense to said action,
defendant avers by way of cross-com-
plaint," the pleading will be construed
against the pleader, and as against
him it will be treated as an answer
merely. Shain v. Belvin, 79 Cal. 262.
And see O'Connor v. Frasher, 53 Cal.
435-
But in Wright v. Anderson, 117 Ind.
351, it was held that a pleading, though
denominated an answer, will be re-
garded as a cross-complaint if facts
are alleged therein which authorize the
granting of affirmative relief. In this
case the second paragraph of the an-
swer, which was regarded by the court
as a cross-complaint, commenced as
follows: " Said defendant for further
answer says that," etc.
1. Precedents. For a good precedent
of an answer and cross-petition see
Peter v. Farrel Foundry, etc., Co., 53
Ohio St. 534, and ante. Form No. 6448.
See also a form in Wilson v. McLaugh-
lin, ii Colo. 465.
2. Ground of Belief. See supra, note
I, p. 992.
3. Prayer for Relief. As the answer is
called a cross-petition only " when
affirmative relief is demanded therein,"
it follows ex m termini that the cross-
petition must pray for the desired
relief. And see supra, note i,
P- 993-
4. Verification. For form of verifi-
cation in a particular jurisdiction con-
sult the title VERIFICATIONS.
994
Volume 5.
CROSSINGS.
See the title RAILROADS.
CRUELTY TO ANIMALS.
BY JOHN H. GABRIEL AND Jos. R. LONG.
I. IN GENERAL, 995.
II. CRUELLY ABANDONING, 998.
III. CRUELLY AND NEEDLESSLY KILLING, 998.
IV. TORMENTING AND TORTURING, 999.
i. By Cruelly Beating, 999.
. By Inflicting Unnecessary Cruelty, 1000.
3. By Mutilating or Wounding, 1000.
4. Causing or Permitting Torture, 1001.
V. FAILURE TO PROVIDE PROPER FOOD OR SHELTER, 1002.
1. Generally, 1003.
2. Impounding Without Food and Water, 1003.
3. Exposing Team to Cold and Stormy Weather, 1003.
VI. IN TRANSPORTING, 1004.
1. Generally, 1004.
2. By a Common Carrier, 1004.
VII. IN WORKING, 1004.
i. Overdriving, 1004.
a. Overloading, 1006.
3. When Unfit for Labor, 1006.
VIII. PIGEON SHOOTING, 1007.
CROSS-REFERENCES.
For Forms connected with Prosecutions for Unlawfully Killing and
Maiming Cattle, see the title CATTLE AND DOMESTIC
ANIMALS, vol. 4, P- 3?6.
For matters of Procedure, see the title CRUELTY TO ANIMALS
AND CHILDREN, 5 ENCYCLOPAEDIA OF PLEADING AND
PRACTICE, p. 645.
I. IN GENERAL. 1
1. Bequisites of Indictment Getter- and circumstances, when, by using:
ally. A charge in an indictment may those words, the act in which an of-
be made in the words of the statute, fense consists is fully, directly and ex-
without a particular statement of facts pressly alleged without any uncertainty
995 Volume 5.
6743.
CRUELTY TO ANIMALS.
6743.
or ambiguity. State v. Comfort, 22
Minn. 271; State v. Haley, 52 Mo. App.
520; Turman v. State, 4 Tex. App. 586.
Description of Animal. A descrip-
tion of the animal as a " certain horse "
is sufficient. Com. v. McClellan, 101
Mass. 34. Or " a certain animal, to
wit, a cow." Com. v. Whitman, 118
Mass. 458.
A description of the animal as " a
certain horse, a dumb animal under
the statute." is sufficient underWillson's
Crim. Stat. Tex. (1889), art. 680. Ben-
son v. State, I Tex. App. 6.
In an indictment for cruelty to a
mule, under a statute relating to cruelty
to "any domestic animal," it is un-
necessary to allege that the mule was a
domestic animal, as the court will take
judicial notice of that fact. State v.
Gould, 26 W. Va. 258.
Ownership of Animal. An allega-
tion as to the ownership of the animal
is unnecessary. Grise v. State, 37 Ark.
456; State v. Bruner, in Ind. 98; Com.
v. Lufkin, 7 Allen (Mass.) 579; Com.
v. McClellan, 101 Mass. 34; Com. v.
Whitman, 118 Mass. 458; State v.
Brocker, 32 Tex. 611, overruling Staie
v. Smith, 21 Tex. 748; Benson v. State,
i Tex. App. 6; Turman v. State, 4 Tex.
App. 586; Darnell v. State, 6 Tex. App.
482; State v. Gould, 26 W. Va. 258.
But where the ownership is alleged,
it becomes a matter of description
which must be proved as alleged.
State v. Bruner, in Ind. 98.
Maliciously and Mischievously. In a
prosecution under Miss. Code (1871),
2708 (Anno. Code (1892), 1022), pro-
viding that "any person who shall
maliciously, either out of a spirit of re-
venge or wanton cruelty, or who shall
mischievously kill, maim or wound or
injure" any animal, shall be punished,
etc., it must be alleged that the offense
was committed " maliciously " or "mis-
chievously." Thompson v. State, 51
Miss. 353. See also Duncan v. State,
49 Miss. 331.
But an averment that the offense
was "maliciously" committed is suffi-
cient, without adding the words "out
of a spirit of revenge or wanton cru-
elty," these words being merely
descriptive of " maliciously." Rem-
bert v. State, 56 Miss. 280.
Wilfully and Wantonly. Under the
former statute of Texas (Pasc. Dig.,
art. 2345) making it a misdemeanor to
*' wilfully and wantonly kill, maim,
wound," etc., any dumb animal, an in-
dictment which failed to allege that the
killing was done both " wilfully " and
" wantonly " was insufficient. State v.
Rector, 34 Tex. 565; Branch v. State, 41
Tex. 622. But under Willson's Crim.
Stat. (1889), art. 680 (Tex. Pen. Code
(1895), art. 787), the use of both words
is unnecessary, the language of the
statute being " wilfully or wantonly.'
Rountree v. State, 10 Tex. App. no.
And an information charging that de-
fendant did " cruelly and unmercifully
beat and abuse" a horse need not
allege that the act was wilfully and
wantonly done. Burgman v. State,
(Tex. Crim. App. 1896) 34 S. W. Rep.
in.
Duplicity Surplusage. Where the
statute makes any person liable to pun-
ishment who cruelly ill-treats an ani-
mal in any of certain ways named, and
further provides for the punishment of
any person who has the charge and
custody of the animal for an unneces-
sary failure to provide for its wants, an
indictment joining both these offenses
is bad for duplicity, but if the latter
offense be insufficiently charged, as on
account of the omission of an aver-
ment that the defendant had charge and
custody of the animal, the latter alle-
gation may be rejected as surplusage.
State v. Haskell, 76 Me. 399.
Where a complaint charged that the
defendant, at a time and place named,
" with force and arms unlawfully and
cruelly did beat and torture a certain
horse, of the property of him the said
Edward Bassett and one Knott P. Mar-
tin," etc., it was held that it did not
charge two separate and distinct
offenses under Mass. Gen. Stat. (1860),
c. 165, 41, providing that "whoever
cruelly beats or tortures any horse or
other animal, whether belonging to
himself or another, shall be punished,"
etc. Com. v. Lufkin, 7 Allen (Mass.)
579-
For another form see Stephens v.
State, 65 Miss. 329.
For the formal parts of an indictment,
information or criminal complaint in a
particular jurisdiction consult the titles
INDICTMENTS; INFORMATIONS; CRIMINAL
COMPLAINTS, ante, p. 930.
For statutes of the various states re-
lating to cruelty to animals see as fol-
lows:
Alabama. Crim. Code (1886), 3872;
Acts (1894-5), p. 697.
Arkansas. Sand. & H. Dig. (1894),
1516 et seq.
996
Volume 5.
6743.
CRUELTY TO ANIMALS.
6743.
Form No. 6743.'
State of Maryland, Washington County, to wit:
The jurors for the state of Maryland, for the body of Washington
county, upon their oath do present, that Caspar Falkenham, late of
Washington county aforesaid, on the fourth day of October, in the year
of our Lord one thousand eight hundred and ninety, with force and
arms, in said county of Washington, unlawfully and wilfully did then
and there engage in an act of cruelty to a certain animal, to wit, a
horse; contrary to the form of the act of assembly in such case made
and provided, and against the peace, government and dignity of the
state.
California. Pen. Code (1897), p. 506
et seq.
Colorado. Mills' Anno. Stat. (1891),
104.
Connecticut. Gen. Stat. (1888),
1458, 1543.
Delaware. Rev. Stat. (1893), p. 403,
1. 2-
Florida. Rev. Stat. (1892), g 2509,
2510.
Illinois. Starr & C. Anno. Stat.
(1896), p. 1261, par. 122.
Indiana. Horner's Stat. (1896),
2101.
Iowa. Code (1897), 4969, 4972.
Kansas. Gen. Stat. (1889), 2420,
2421, 2428.
Kentucky. Stat. (1894), 1246,
1249.
Maine. Rev. Stat. (1883), c. 124, 29.
Massachusetts. Pub. Stat. (1882), c.
207, 52, 53-
Michigan. How. Anno. Stat. (1882),
939* > 9393-
Minnesota. Stat. (1894), 6792,
6793-
Mississippi. Anno. Code (1892),
1014-1018.
Afissouri.Rev. Stat. (1889), g 3896,
3897.
Montana. Pen. Code (1895), 1090-
1093.
Nebraska. Comp. Stat. (1897), 6718
et seq.
New Hampshire. Pub. Stat. (1891),
c. 267, i.
New Jersey. Gen. Stat. (1895), p. 34,
17 et seq.
New York. Pen. Code, 655, 657,
659.
North Carolina. Code (1883),
2482, 2484, 2486.
North Dakota. Rev. Codes (1895),
7560.
Ohio. Bates' Anno. Stat. (1897),
6951.
Oklahoma. Stat. (1893), 2485.
Oregon. Hill's Anno. Laws (1892),
1878-1880.
Pennsylvania. Pepp. & L. Dig.
(1894), p. 1158, 148 et seq.
Rhode Island. Gen. Laws (1896), c.
"4, I. 2.
South Carolina. Crim. Stat. (1893),
506-508.
Tennessee. Code (1896), 2857,
2859-
Texas. Pen. Code (1895), art. 787.
UtaA. Rev. Stat. (1898), 4453,
4455-
Vermont. Stat. (1894), 4993,
4994-
Virginia. Code (1887), 3796.
Washington. Pen. Code (1893),
2321.
West Virginia. Code (1891), p. 919,
14-
Wisconsin. Sanb. & B. Anno. Stat.
(1889), 4445-
Wyoming. Laws (1895), p. 57,
I, 2.
1. This form is drawn under Md.
Laws (1890), c. 198, i, which provides
that "any person who wilfully sets
on foot, instigates, engages in, or in
any ways furthers any act of cruelty
to any animal," etc., shall be deemed
guilty of a misdemeanor. The charg-
ing part of the indictment is the same
as that held sufficient in State v. Falk-
enham, 73 Md. 463.
For similar statutes, see
Arkansas. Sand. & H. Dig. (1894),
IS 2 *-
Georg ia. 3 Code (1895), g 703, 705.
Montana. Pen. Code (1895), 1090.
New York. Pen. Code, 655.
North Carolina. Code (1883), 2487.
Tennessee. Code (1896), 2863.
An indictment charging that the de-
fendant did " cruelly drive and cruelly
treat " two bay mares charges an
offense within the Georgia statute. Mc-
Kinne v. State, Si Ga. 164.
997
Volume 5.
6744.
CRUELTY TO ANIMALS,
6745.
II. CRUELLY ABANDONING.
Form No. 6744.'
Commonwealth of Massachusetts, \ At the Superior Court begun
County of Hampshire. \ ' and holden at Northampton,
within and for the county of Hampshire, on the second Monday of
February, in the year of our Lord one thousand eight hundred and
ninety-eight.
The jurors for said commonwealth on their oath present that John
Doe, late of Northampton, in the county of Hampshire, on ihz first day
of January, in the year of our Lord one thousand eight hundred and
ninety-eight, at Northampton aforesaid, in the county of Hampshire
aforesaid,* having the charge and custody of a certain cow, which by
reason of a broken leg was unable to walk, and incapable of taking
care of itself or supporting itself with food, did then and there unlaw-
fully and cruelly abandon the said cow, against the peace and dignity
of said commonwealth, and contrary to the form of the statute in such
case made and provided.
Daniel Webster, District Attorney.
ill. CRUELLY AND NEEDLESSLY KILLING. 2
The State of Arkansas
against
John Doe.
Form No. 6745."
> Indictment.
Johnson Circuit Court.
. 1. Massachusetts. Pub. Stat. (1882),
c. 207, 53. See also list of statutes
cited supra, note I. p. 995.
2. Requisites of Indictment Manner
of Killing. An indictment for need-
lessly killing an animal need not state
the manner nor the particular circum-
stances of the killing. State v . Green-
lees, 41 Ark. 353.
Value and Ownership. No allega-
tions as to the value and ownership of
the animal killed are necessary. Grise
v. State, 37 Ark. 456.
See also supra, note I, p. 995.
Sufficient Indictment. An indictment
charging that the defendant did " know-
ingly, wilfully, and needlessly act in a
cruel manner towards a certain fowl,
to wit, a chicken, by killing i,a\&. chic ken"
is sufficient under N. Car. Code (1883),
2482. State v. Neal, 120 N. Car. 613.
Insufficient Complaints. A complaint
charging that defendant did, at a cer-
tain time and place, " unlawfully and
cruelly shoot and injure a certain dog,
by then and there shooting said dog
with leaden shot and killing him," was
held insufficient under Ind. Rev. Stat.
(1881), 2101, the needless killing being
the offense, and not the cruel killing.
Hunt v. State, 3 Ind. App. 383.
A complaint in the following words,
to wit:
" Genesee County, ss.
John Mohr, being duly sworn, says:
That on the ijt/i day of July, 1875, he
was at the house of Sqrtire Perry, in
the town of Darien, in said county,
and he saw a man on a peddler's cart,
in said town, shoot at a dog of and
belonging to said Syuire Perry, in said
town; that the said dog was hit in the
neck, and he believes the said dog will
die - his
John X Mohr.
mark
Sworn before me this i^th day of
July, 1875.
A. H. Perry,]. P."
was held insufficient, under the New
York statutes making it a misdemeanor
to " maliciously " or " needlessly" kill
any animal (Laws (1866), c. 682, Laws
(1867), c. 375, i), to confer jurisdic-
tion upon the justice to issue a war-
rant of arrest thereupon, there being
no allegation from which he could in-
fer that the shooting was malicious or
needless. Warner v. Perry, 14 Hun
(N. Y.) 337.
3. Arkansas. Sand. & H. Dig. (1894),
1516. See also list of statutes cited
998
Volume 5.
6746.
CRUELTY TO ANIMALS.
6746.
The grand jury of Johnson county, in the name and by the authority
of the state of Arkansas, accuse John Doe of the crime of needlessly
killing an animal, committed as follows, viz. : The said John Doe, on
the first day of April, \W8, in the county aforesaid, did unlawfully
and needlessly 1 kill a certain hog, against the peace ami dignity of the
state of Arkansas.
Daniel Webster, Prosecuting Attorney.
IV. TORMENTING AND TORTURING. 2
1. By Cruelly Beating.
Form No. 6746.*
(Commencing as in Form No. 6744, an d continuing down to *) did
then and there unlawfully and cruelly beat a certain horse, against
the peace (concluding as in Form No. 6744)-
supra, note I, p. 995. The form
given in the text has been held sufficient
in Grise v. State, 37 Ark. 456; State v.
Greenlees, 41 Ark. 353.
1. For the word "needlessly" sub-
stitute " cruelly " where the statute em-
ploys the latter word.
2. Requisites of Indictment Gener-
ally. Consult note i, p-995, supra.
Specific Acts of Torture. In charg-
ing the offense of torturing an animal,
the method of torture, as well as the
effect produced, must be stated. Avery
v. People, ii 111. App. 332; State v.
Bruner, in Ind. 98; State v. Pugh, 15
Mo. 509; State v. Watkins, 101 N. Car.
702.
Thus an indictment charging that
the defendant did " knowingly and
wilfully and unlawfully torture, tor-
ment and act in a cruel manner to-
wards a certain animal, to wit, a hog,
the property of," etc., without setting
forth the facts which constituted such
torturing, etc., was held fatally defec-
tive under the North Carolina statute
(Code (1883), 2482). State v. Watkins,
101 N. Car. 702.
And an indictment for torturing ani-
mals which charges merely the act of
tying brush or boards to the tail of a
horse, unaccompanied by averments
declaring the effects of the act, is
insufficient; for such an act does not
necessarily produce torture. State v.
Pugh, 15 Mo. 509.
Sufficient Indictment. An allegation
in a complaint drawn under Me. Rev.
Stat. (1883), c. 124, 29, that defendant
"did cruelly and unlawfully torment,
torture, maim, beat, wound and de-
prive of necessary sustenance" a horse
belonging to himself, was held to
charge but one offense. State v. Has-
kell, 76 Me. 399.
3. Massachusetts. Pub. Stat. (1882),
c. 207, 52. See also list of statutes
cited supra, note i, p. 995. The
charging part of this form is taken
from Com. v. McClellan, 101 Mass. 34.
The intent with which the cruel beat-
ing was done is immaterial and need
not be alleged. State v. Hackfath, 20
Mo. App. 614.
Ownership. A complaint under the
Massachusetts statute charging that the
defendant at a time and place named,
" having the charge or custody of an-
other certain animal, to wit, a cow, did
then and there cruelly torture and tor-
ment said cow, by then and there cruelly
beating, bruising and wounding said
cow" was held sufficient without any
allegation as to the ownership of the
animal, or that the cruelty was un-
necessary. The words " having the
charge or custody of" may be rejected
as surplusage. Com. -. Whitman, 118
Mass. 458.
Forms Held Sufficient. An indict-
ment, omitting the formal parts, which
charged that the defendant did " un-
lawfully, withaclub./i'wr feet in length
and two inches thick, maliciously and
cruelly beat a certain horse, the prop-
erty of him, the said William Hatkfath,
from the effects of which the said horse
did then and there die," was held suffi-
cient under the Missouri statute. State
v. Hackfath, 20 Mo. App. 614.
A complaint undrr the Massachusetts
statute charging that the defendant, at
999
Volume 5.
6747.
CRUELTY TO ANIMALS.
6748.
2. By Inflicting Unnecessary Cruelty.
Form No. 6747.'
(Commencing as in Form No. 6744, ari <t continuing down to *) having
the charge and custody of a certain horse, did then and there unlaw-
fully and unnecessarily inflict unnecessary cruelty upon the said horse,
by compelling it to draw a heavy load while provided with unsuitable
harness, which cut into the flesh of the said horse, thereby causing it
great pain and suffering, against the peace (concluding as in Form
No. 6744).
3. By Mutilating or Wounding. 2
a time and place named, "with force
and arms unlawfully and cruelly did
beat and torture a certain horse, of the
property of him, the said Edward Bas-
sett and one Knott P. Martin," etc., is
sufficient, and does not charge two
offenses. Com. v. Lufkin, 7 Allen
(Mass.) 579.
An indicment in the following words,
to wit:
"The grand jurors of the state of
West Virginia, in and for the body of
the county of Wood, and now attending
the said court, upon their oaths present,
that Stephen Gould, on October fj, A. D.
iSSs, in the said county, did unlawfully
and wilfully and cruelly beat, shoot,
torture and otherwise ill-treat a certain
beast called a mule; the owner or owners
of which said mule is to the grand jurors
unknown, contrary to the form of the
statute in such case made and pro-
vided, and against the peace and dig-
nity of the state," was held sufficient,
the words " shoot, torture and other-
wise ill-treat," and the allegation as to
ownership, being regarded as surplus-
age. State v. Gould, 26 W. Va. 258.
For other forms see Com. v. Whit-
man, 118 Mass. 458; State v. Avery, 44
N. H. 392-
1. Massachusetts. Pub. Stat.(i882), c.
207, 52. See also supra, note I,
P- 995-
2. Requisites of Indictment. Generally.
Consult note I, p. 995, supra.
The manner of mutilating should be
set forth in the indictment. Avery v.
People, ii 111. App. 332; State v. Bru-
ner, in Ind. 98. And an information
charging that the defendant at a certain
time and place was " guilty of cruelty
to a certain hog, the said hog then and
there being an animal, by then and
there mutilating the said animal, con-
trary to the form of the statute," etc.,
was held defective in that it did not
show the manner and character of the
mutilation, and that it was unlawful.
Avery v. People, n 111. App. 332. But
an information charging the mutilation
of a dog, which states the means em-
ployed in the commission of the offense,
need not describe the injury inflicted
upon the animal. State v. Giles, 125
Ind. 124.
Dishorning Cattle. Under Stat. 12 &
13 Vic., c. 92, 2, providing that " if any
person shall cruelly beat, ill-treat, over-
drive, abuse, or torture. * '* * any
animal," every such offender shall be
liable, etc., it was held that the defend-
ant was properly convicted for the of-
fense of dishorning cattle upon an
information charging that he " did ill-
treat, abuse and torture, and cause to
be ill-treated, abused and tortured, six-
teen oxen on the 8th and sixteen other
oxen on the ijth day of October, i8<&P."
Ford v.. Wiley, L. R. 23 Q. B. Div. 203.
See also Brady v. M'Argle, 15 Cox C.
C. 516.
Maiming. An information charging
that the accused, at a certain time and
place, "did then and there unlawfully,
wilfully and wantonly maim a dumb
animal, to wit, a certain dark-bay mule,
the same being a dumb animal such as
is enumerated in article 713 of the Penal
Code of the state of Texas, and being
the property of him, the said " defend-
ant, etc., was held sufficient under
Pasc. Dig. Tex., art. 2345 (Willson's
Crim. Stat. Tex. (1889), art. 680). Turn-
man v. State, 4 Tex. App. 586.
Shooting Cow, An indictment charg-
ing that the defendant wilfully and
unlawfully "did cruelly beat and shoot,
and needlessly mutilate, torment and
torture a certain useful animal, to wit:
one cow, the property of Joseph Dixon,
contrary to the form of the statute,"
etc., although not in the words of the
statute, was held to sufficiently charge
1000
Volume 5.
6748. CRUELTY TO ANIMALS. 6750.
Form No. 6748.
(Precedent in State v. Bruner, ill Ind. 99.)"
[State of Indiana,
/V&r County.
Before me John M. White, a justice of the peace for said county,
came William Long, who being duly sworn according to law, deposeth
and sayeth that on or about the 21st day of November, in the year
1 885, at the county of Pike and State of Indiana, Ralph Smith and
Edward Bruner, late of said county, did then and there unlawfully
and cruelly torture, torment and needlessly mutilate a certain
animal, to wit, a goose, the property of some person or persons to the
affiant unknown, 3 by then and there unlawfully turpentining and
burning, in a cruel and wanton manner, 4 the sa\A goose.
[ William Long.
Subscribed and sworn to this twenty -first day of November, i&85.
John M. White, Justice of the Peace.] 2
Form No. 6749.*
North Carolina, \ Superior Court,
Cumberland County, \ Spring Term, iS98.
The jurors for the state, upon their oath present, that John Doe,
late of the county of Cumberland, on \hzfirst day of January, in the
year of our Lord one thousand eight hundred and ninety-eight, at and
in the said county, did unlawfully and needlessly mutilate a certain
cow, by then and there twisting off the tail of said cow, 6 contrary to
the form of the statute in such case made and provided, and against
the peace and dignity of the state.
Daniel Webster^ Solicitor.
4. Causing or Permitting Torture. 7
the offense of wounding under North torturing, etc., though perhaps not so
Carolina statute (Code (1883), 2482). full and apt a description of the offense
State v. Butts, 92 N. Car. 784. as might have been given, was held
Other Forms. ' For other forms see sufficient.
Hodge v. State, n Lea (Tenn.) 528; 5. North Carolina. Code (1883),
State v. Brocker, 32 Tex. 612; Benson 2482. See also supra, note i, p.
v. State, I Tex. App. 6; Rountree v. 995. The offense is charged in the
State, 10 Tex. App. no. language used in State v. Allison, 90
1. Indiana. Homer's Stat. (1896), N. Car. 733, which was held sufficient
2101. See also supra, note I, under this statute.
p. 995. 6. See supra, note 2, p. looo.
2. The words and figures enclosed by 7. Sufficient Complaint. A complaint
[ ] will not be found in the reported under Mass. Pub. Stat. (1882), c. 207,
case, but have been added to render 53, alleging that the defendant, at a
the form complete. certain time and place, " was the person
3. The allegation that the goose was having the charge and custody of a cer-
" the property of some person or per- tain animal, to wit, a. fox, and did then
sons to the affiant unknown was held and there knowingly and wilfully per-
equivalent to an averment that the mit the said fox to be subjected to un-
goose was a domestic fowl, so as to be necessary suffering, by then and there
an animal within the meaning of the knowingly and wilfully turning the
statute. said/0* loose, to be hunted by divers
4. The charge as to the method of dogs, in consequence of which turning
1001 Volume 5.
6750.
CRUELTY TO ANIMALS.
6751,
Form No. 6750.'
(Precedent in Com. v. Thornton, 113 Mass. 457.)
[(Commencing as in Form No. 6744, an d continuing down to *)] 1
having the charge and custody of a certain animal, to wit, a dog,
did then and there knowingly and wilfully authorize and permit said
dog to be subjected to unnecessary torture, suffering and cruelty, by
then and there knowingly and wilfully suffering and permitting said
dog to be bitten, mangled and cruelly tortured by a certain other
dog, [against (concluding as in Form No. 6744)-] 2
V. FAILURE TO PROVIDE PROPER FOOD OR SHELTER. 3
loose of the said fox, as aforesaid, the
said fox was hunted by divers dogs
and thereby subjected to unnecessary
suffering as aforesaid," was held to
sufficiently charge an offense. Com.
v. Turner, 145 Mass. 296.
Insufficient Complaint. A complaint
in a prosecution for cruelty to an ani-
mal committed by an agent, servant or
employee, under N. J. Laws(i88o), 13,
" Cruelty to Animals," charging that
defendant "did by his agent and em-
ployee, cruelly torture, torment and
beat one living animal, to wit: one
mule," etc., "and did by such agent, beat
such mule by striking him many times
with a heavy whip, using the butt end,"
etc., " besides kicking the mule many
times," was held insufficient, because
it does not charge that the defendant
did, by his agent, servant or employee,
cause or procure, or was active in some
way in causing or procuring.the cruelty
complained of to be committed. Roe-
ber v. Society, etc., 47 N. J. L. 237.
1. Massachusetts. Pub. Stat. (1882),
c. 207, 53. See also supra, note I,
P- 995-
2. The matter to be supplied within
[ ] will not be found in the reported
case.
3. Requisites of Indictment Gener-
ally. Consult note i, p. 995, su-
pra.
Animals in Defendant's Charge. An
allegation that the defendant had the
charge and custody of the animal is
necessary in an indictment for failing
to provide proper food, etc. State v.
Haskell. 76 Me. 399; State v. Spink,
(R. I. 1896) 36 Atl. Rep. 91. See also
Com. -v. Whitman, 118 Mass. 458.
But a general averment that the de-
fendant had the charge and custody of
the animal is sufficient, without charg-
ing the custody "as owner or other-
wise," or otherwise defining it. State
v. Clark, 86 Me. 194.
Unnecessarily. The omission of the
word "unnecessarily" renders the in-
dictment insufficient. Ferrias v. Peo-
ple, 71 111. App. 559.
Time. A count in a complaint
charging the defendant with neglect-
ing to provide certain oxen with proper
food, drink and protection from the first
to the fourteenth day of a certain month,
charges but a single offense, and prop-
erly charges it as a continuing one.
State v. Bosworth, 54 Conn. i.
Forms Held Sufficient. A complaint
which charged, omitting the formal
parts, that the defendant during a cer-
tain period of time " was the person
having the charge and custody of a
certain animal, to wit, a horse, and it
was then and during the whole time
aforesaid the duty of the said Rodney
Edmonds to provide the said horse with
proper shelter and protection from the
weather; and that the said Rodney Ed-
mands did then and during the whole
time aforesaid there unnecessarily and
cruelly fail to provide the said horse
with proper shelter and protection from
the weather," etc., was held to clearly
and sufficiently describe an offense un-
der Mass. Pub. Stat. (1882), c. 207,
52. The words "and cruelly" were
mere surplusage. Com. v. Edmands,
162 Mass. 517.
In State v. Clark, 86 Me. 194, the fol-
lowing form was held sufficient, to wit:
" Eben N. Perry, on the twelfth day
of January, in the year of our Lord one
thousand eight hundred and ninety-
three, in behalf of said state, on oath
complains that Frederick A. Clark, of
Portland, in said county, on the eleventh
day of January, A. D. iS9j>, at said Port-
land, then and there having the custody
and control of a certain horse, did then
and there unnecessarily fail to provide
such horse with proper shelter and pro-
tection from the weather, against the
peace of the State, and contrary to the
1002
Volume 5.
6751. CRUELTY TO ANIMALS. 6753.
1. Generally.
Form No. 6751.'
(Commencing as in Form No. 6744, and continuing down to *) having
then and there the charge and custody of a certain Tiorse, did then
and there unlawfully and unnecessarily fail to provide the said horse
with proper food and drink (or shelter or protection from the weather),
against the peace (concluding as in Form No. 6744).
2. Impounding- Without Food and Water.
Form No. 6752.*
In the Superior Court of the County of Sacramento, State of Cali-
fornia, Monday, the third fay of February, A. D. iS96.
The People of the State of California \
against
John Doe. )
John Doe is accused by the grand jury of the county of Sacramento,
state of California, by this indictment, of a misdemeanor committed
as follows: The saidy^/z Doe, on the fifteenth day of March, A. D.
eighteen hundred and ninety-eight, at the county of Sacramento, afore-
said, did impound (or cause to be impounded) in a certain pound there
situate two certain cows, and did then and there unlawfully fail to
supply the said cows during such confinement as aforesaid with a
sufficient quantity of good and wholesome food and water, contrary
to the form, force and effect of the statute in such case made and
provided, and against the peace and dignity of the people of the
r.tate of California.
Daniel Webster, District Attorney.
3. Exposing Team to Cold and Stormy Weather.
Form No. 6753.'
State of Nebraska, \
County of Coif ax. \ ss>
State of Nebraska ) At the February Term, A. D. i85, of the District
against \ Court of the Fourth Judicial District of the State
John Doe. ) of Nebraska,w\\.\i\n. and for the County of Colfax.
At the February term of the District Court of the Fourth Judicial
District of the state of Nebraska, within and for the county of Col-
fax, in said state, in the year of our Lord one thousand eight hundred
and ninety-eight, the grand jurors, chosen, selected and sworn in and
for the county of Colfax, in the name and by the authority of the
state of Nebraska, upon their oaths present,* that/^ Doe, late of
the county aforesaid, on the first day of January, in the year of our
Lord one thousand eight hundred and ninety-eight, in the county of
form of the statute in such case made 2. California. Pen. Code (1897), p.
and provided." 510, 12. See also supra, note 3,
1. Massachusetts. Pub. Stat. (1882), p. 1002.
c. 207 ^ 52. See also supra, note i, 3. Nebraska. Comp. Stat. (
p. 995, and note 3, p. 1002. 6718. See also supra, note 3, p. 1002.
1003 Volume 5.
6754. CRUELTY TO ANIMALS. 6756.
Coif ax aforesaid, and state of Nebraska, did wilfully, unlawfully and
inhumanely allow his team, to wit, two horses (or mules or oxen}, the
property of him, the said John Doe, to stand tied upon the street
for four consecutive hours at a time in cold and stormy weather, to
the injury of said team, contrary to the form of the statute in such
case made and provided, and against the peace and dignity of the
state of Nebraska.
Daniel Webster, County Attorney.
VI. IN TRANSPORTING.
1. Generally.
Form No. 6754.'
(Commencing as in Form No. 6744, and continuing down to *) having
the care and custody of a certain horse, did carry the said horse (or
cause the said horse to be carried} in and upon a certain wagon (or
other vehicle or otherwise} in an unnecessarily cruel and inhuman man-
ner, by then and there placing the said horse upon its back in and
upon the said wagon, and fastening it in this position by ropes in
such a manner that the said horse was made to suffer great pain and
torture by reason of being so fastened as aforesaid, and by then and
there driving the said wagon containing the said horse so placed and
fastened as aforesaid, against the peace (concluding as in Form
No. 6744)-
2. By a Common Carrier.
Form No. 6755. 8
(Commencing as in Form No. 6753, and continuing down to *) that
The Pleasant Valley Railroad Company is a corporation duly incor-
porated under the laws of this state, and is operating a line of rail-
road in said county of Col/ax; and that on the first day of January,
in the year of our Lord one thousand eight hundred and ninety-eight,
in the county of Coif ax aforesaid, and state of Nebraska, in carrying
and transporting live stock, to wit, two hundred head of steers, on its
said railway, did unlawfully detain such stock in cars for a longer
continuous period than twenty-four hours, without supplying the said
stock with food and water; contrary to the form {concluding as in
Form No. 6753}.
VII. IN WORKING.
1. Overdriving-.
Form No. 6756.
(Precedent in Friedline v. State, 93 Ind. 370.;
State of Indiana, Randolph County, ss:
Before me, Jacob Dick, a justice of the peace for said county, came
1. Massachusetts. Pub. Stat. (1882), 2. Nebraska. Comp. Stat. (1897),
c. 207, 53. See also supra, note i, 6723. See also supra, note I, p. 995.
p. 995.
1004 Volume 5.
6757. CRUELTY TO ANIMALS. 6757.
Oliver Y. Sackman, who, being duly sworn according to law, deposeth
and saith; That on or about the 26th day of June, i&W,at the county
of [RandolphV- and state of Indiana, one Albert Friedline, late of said
county, did then and there unlawfully and cruelly beat, torture and
overdrive a team of horses, mares or geldings, at said county, said
horses, mares or geldings being then and there the property of one
, contrary to the form of the statute in such case made and
provided, and against the peace and dignity of the state of Indiana.
[Oliver Y. Sackman.
Subscribed and sworn to before me, this twelfth day of July, i
(SEAL) Jacob Dick, J. P.]
Form No. 6757.
(Precedent in State v. Haley, 52 Mo. App. 521.)*
State of Missouri, )
County of Monroe. \ SS '
The State of Missouri
v.
William Haley.
Before^. E. L. Sevier, a justice of the peace, within and for Mon-
roe township, Monroe county, Missouri.
William T. Ragland, assistant prosecuting attorney within and for
the county of Monroe in the state of Missouri, informs the justice that
one William Haley, on or about the thirteenth day of March, A. D. iS91,
at the said county of Monroe, did then and there unlawfully torture
two domestic animals, to wit, two black mares, the property of E. P.
Nelson and D. D. Nelson, by then and there forcing said animals
through mud and over miry roads with violent speed, by cruelly
whipping them, the said mares, when they were greatly distressed,
fatigued and injured by reason of having been previously driven over
a great distance of muddy roads, and with great speed, against the
peace and dignity of the state.
William T. Ragland, assistant prosecuting attorney within and for
t'le county of Monroe, as aforesaid, further informs the justice that
William Haley, on or about the thirteenth day of March, iS91, at the
saiJ county of Monroe, did then and there unlawfully and cruelly out-
drive two domestic animals, to wit, two black mares, by then (and
there) driving said animals through mud and over miry roads with
violent speed, by whipping and beating them, the said mares, when
1. The name of the county in which county has been supplied to overcome
the offense was committed was omitted the defect urged.
in the above affidavit, which was ob- 2. The words and figures enclosed by
jected toon that ground, but the court [ ] will not be found in the reported
held that the omission was immaterial, case, but have been added to render
as the venue was sufficiently shown by the form complete,
the name of the county in the title, and 3. The state appealed from the judg-
the use of the word "there" in the ment of the circuit court quashing this
body of the affidavit, which must be information, and the judgment was
construed as referring to the venue reversed,
stated in the title. The name of the
1005 Volume 5.
6758. CRUELTY TO ANIMALS. 6759.
they were greatly distressed, fatigued and injured by reason of having
been previously driven with great speed, a long distance over muddy
roads, against the peace and dignity of the state.
William T. Ragland,
Assistant Prosecuting Attorney.
2. Overloading.
Form No. 6758.
(Precedent in People v. Tinsdale, 10 Abb. Pr. N. S. (N. Y. Gen. Sess.) 374.)'
City and County of New York, ss.
The jurors of the people of the state of New York, in and for the
body of the city and county of New York, upon their oath present:
That George W. Tinsdale, late of the first ward of the city of New
York in the county of New York aforesaid, he then and there being a
conductor of a passenger car, on the Bleecker-street and Fulton
Ferry Railroad of the city of New York, and Arthur Taggart, late of
the same place, he then and there being the driver of said passenger
car of said railroad, on the second day of January, in the year of our
Lord one thousand eight hundred and sixty-eight, at the ward, city
and county aforesaid, with force and arms did unnecessarily over-
load and procure said passenger car to be overloaded, then and there
being attached to said passenger car two living creatures, to wit, two
horses; by means whereof on a certain portion of the route of the
said railroad the horses so attached to said passenger car were unable
to draw said passenger car, but were, by reason of the premises
aforesaid, overloaded, overdriven, tortured and tormented; against
the form of the statute in such case made and provided, and against
the peace of the people of the state of New York, and their dignity.
A. Oakey Hall, District Attorney.
3. When Unfit for Labor.
Form No. 6759.*
{Commencing as in Form No. 6744, and continuing down to *) having
the charge and custody of a certain horse, which said horse, by reason
of sores upon its back and legs, was then and there unfit for labor,
did then and there unlawfully and cruelly drive (or work) said horse,
against the peace (concluding as in Form No. 6744)-
1. This form sufficiently charged an Porter, 164 Mass. 576. In that case it
offense under N. Y. Laws (1867), c. 375. was moved to quash the indictment on
See also supra, note I, p. 995. the ground that there was no allega-
2. Massachusetts. Pub. Stat. (1882), tion that the defendant knew of the un-
c. 207, 53. See also supra, note i, fitness of the horse for labor, but it was
p. 995. This form is substantially the held that no such allegation was neces-
same as the one held good in Com. v. sary.
1006 Volume 5.
6760.
CRUELTY TO ANIMALS.
6760.
VIII. PIGEON SHOOTING.
Form No. 6760.'
State of Maine.
Cumberland, ss. At the Superior Court begun and .held at Port-
land, within and for the said county of Cumberland, on the first
Tuesday of September, in the year of our Lord one thousand eight
hundred and ninety-eight.
The jurors for said state, upon their oath present, that John Doe, of
said Portland, in the county of Cumberland, merchant, at Deering, in the
afterwards killed, and both birds sold
for food, it was held that the defendant
was not guilty under the Pennsylvania
statute making it a misdemeanor for
any person to " wantonly or cruelly ill-
treat * * * or otherwise abuse any
animal." Com. v. Lewis, 140 Pa. St.
261.
But in Waters v. People, 23 Colo. 33,
the plaintiff in error was convicted in
the lower court upon the following
complaint, taken from the files in the
case:
" State of Colorado, \
El Paso County. \ ss
The complaint and information of
Francis B. Hill made before William
Saxton, Esq., one of the Justices of the
Peace in and for said County, on the
I2th day oi January, A. D. 1895, who,
being duly sworn, on oath says that
Frank Waters, on the izth day of
January, A. D. 1835, in said county,
did unnecessarily mutilate and tor-
ture certain animals, to wit, doves,
contrary to the form of the statute in
such case made and provided, and
against the peace and dignity of the
People of the State of Colorado.
Francis B. Hill.
Subscribed and sworn to before me
this isth day of January. A. D. l&Qf.
William Saxton, (SEAL)
Justice of the Peace."
On appeal the conviction was af-
firmed. The defendant below was a
member of a gun club, and the offense
charged consisted of shooting doves
for amusement as they were released
from a trap. The case was a test case
to determine whether .this was within
the inhibition of the statute (Mills'
Anno. Stat. Colo. (1891), 104). and the
court held that it was. No question
was raised as to the sufficiency of the
complaint.
For a similar decision in North Caro-
lina see State v. Porter, 112 N. Car.
887.
1. It is provided by statute in Maine
(Rev. Stat. (1883), c. 124, g 30), that
"whoever keeps or uses any live
pigeon, fowl or other bird for a target,
or to be shot at, either for amuse-
ment or as a test of skill in marksman-
ship, and whoever shoots at any bird
as aforesaid, * * * shall be punished,"
etc.
Similar statutes are as follows:
Connecticut. Gen. Stat. (1888),
2548.
Massachusetts. Pub. Stat. (1882), c.
207, 59-
Michigan. How. Anno. Stat. (1882),
939.2.
Mississippi. Anno. Code (1892),
102 1.
New Hampshire. Pub. Stat. (1891),
c. 267, 7.
Rhode Island. Gen. Laws (1896), c.
114, II, 17.
Vermont. Stat. (1894), 4995.
In several cases prosecutions for
pigeon shooting have been brought
under the general statutes prohibiting
cruelty to animals, but not always
with success. Thus under the Mis-
souri statute (Rev. Stat. (1889), 3896),
making it a misdemeanor for any
person to "needlessly kill any liv-
ing creature," a complaint charging
that defendant "did unmercifully kill
certain living creatures by shooting
them with a shot-gun for the purpose
of displaying his skill as a marksman,
to wit, twenty-five pigeons, contrary to
the form of the statute," etc., was held
not to charge an offense. State v. Bo-
gardus, 4 Mo. App. 215.
So also where an indictment charged
that the defendant did "unlawfully,
wantonly and cruelly shoot, wound,
torture, abuse and ill-treat a certain
pigeon," etc., and the evidence showed
that the defendant at a shooting match
shot at two pigeons liberated from a
trap, killing one and wounding the
other, the latter being immediately
1007
Volume 5.
6760. CRUELTY TO ANIMALS. 6760.
said county of Cumberland, on \hefirst day of August, in the year of
our Lord one thousand eight hundred and ninety-eight, did then and
there unlawfully keep and use a large number, to wit, twenty live
pigeons (or fowls or other birds, as the case may be) for targets (or to
be shot at for amusement or as a test of skill in marksmanship), against
the peace of said state and contrary to the form of the statute in
such case made and provided.
Richard Roe, Foreman.
Daniel Webster ', County Attorney.
1008 Volume 5.
CRUELTY TO CHILDREN.
By Jos. R. LONG.
I. IN GENERAL, 1009.
II. EXPOSING TO INCLEMENCY OF WEATHER, 1010.
III. NEGLECTING TO PROVIDE SUPPORT, 1010.
i. Against Parent, 1010.
a. Against Any Person Having Control of Child, 1012.
IV. ILLEGAL EMPLOYMENT, 1013.
1. In Acrobatic, Mendicant or Obscene Employment, 1013.
2. In Manufacturing or Mercantile Establishment, 1014.
3. /// Mining, 1015.
4. Overworking in Factories, 1016.
5. Violating School Law, 1016.
CROSS-R EFERENCES.
For Forms in Prosecutions for Abandoning a Child, see the title ABAN-
DONMENT OF CHILDREN, vol. i, p. i.
For Forms in Prosecutions for Assault, see the title ASSAULT, vol. 2,
p. 228.
For matters of Procedure, see the title CRUELTY TO ANIMALS
AND CHILDREN, 5 ENCYCLOPAEDIA OF PLEADING AND
PRACTICE, p. 695.
I. IN GENERAL.
Form No. 6761.'
State of New Jersey, \
County of Mercer. \
John Doe of the village of Princeton in the county of Mercer and
state of New Jersey, upon his oath (or affirmation) complains that on
the third day of January, A. D. \W8, at the village of Princeton in the
county aforesaid:
Richard Roe, of Princeton aforesaid, being then and there the father
1. New Jersey. Gen. Stat. (1895), p. Missouri. Rev. Stat. (1889). 3499.
1720, 8 38. Montana. Pen. Code (1895). fc 473.
See also similar statutes as follows: New Hampshire. Pub. Stat. (1891),
Colorado. Laws (1891), p. 60, 3. c. 265, I.
Georgia. 3 Code (1895), 708. New Jersey. Gen. Stat. (1895), p.
Illinois. Starr & C. Anno. Stat. 1717, 26.
(1896), p. 1262, par. 125. Pennsylvania. Bright. Pur. Dig.
Kansas. Gen. Stat. (1889), 2170. (1894), p. 1017, g 25.
Kentucky. Stat. (1894), 327. Washington. Ballinger's Anno.
Minnesota. Stat. (1894), 6540, Codes & Stat. (1897), 7071.
8014.
5 E. of F. P. 64. 1009 Volume 5.
6762. CRUELTY TO CHILDREN. 6763.
of one Robert Roe, a child of tender years, to wit, of the age of eight
years, and having the care, custody and control of said child, did
unlawfully, wilfully, maliciously and in a cruel and inhuman manner
beat, whip and punish said child, so as to endanger its life and injure
its health, by stripping said child of his clothing and suspending him
by his thumbs and then striking him _//"/>> blows on the bare back
with a strap of leather and metal.
And therefore, he prays that the said Richard Roe may be appre-
hended and held to answer to said complaint, and dealt with as law
and justice may require.
John Doe.
Sworn (or affirmed') and subscribed the fifth day of January, iS9S,
before me, Abraham Kent, Justice of the Peace.
II. EXPOSING TO INCLEMENCY OF WEATHER.
Form No. 6762.'
State of Illinois, } Of the September Term of the McLean Circuit
McLean County, f ' Court, in the year of our Lord one thousand
eight hundred and ninety-seven.
The grand jurors, chosen, selected and sworn in and for the county
of McLean, in the name and by the authority of the people of the
state of Illinois, upon their oaths present that John Doe, on thejirst
day of August, in the year of our Lord one thousand eight hundred
and ninety-seven, at the city of Bloomington, in the county of McLean
aforesaid, did then and there unlawfully, feloniously, 2 wilfully and
unnecessarily expose to the inclemency of the weather one David
Doe, then and there being the child (or apprentice) of the said John
Doe, and under his legal control, and then and there did thereby
injure the said child (or apprentice~) in health and limb, contrary to
the form of the statute in such case made and provided, and against
the ~eace and dignity of the same people of the state of Illinois.
Alexander Hamilton, State's Attorney.
ill. NEGLECTING TO PROVIDE SUPPORT.
1. Against Parent.
Form No. 6763.
(Precedent in Reg. v. Chandler, Dears. C. C. 453. ) 3
[Kent, to wit.] The jurors for our lady the Queen, upon their
oath present that during all the time hereinafter in this indictment
1. Illinois. Starr & C. Anno. Stat. intent to injure him [the child] in
(1896), p. 1262, par. 125. health or limb." Tenn. Code (1896),
See also similar statutes as follows: 6466.
Colorado. Laws (1891), p. 60, 3. 2. Feloniously. Only under the stat-
Kentucky. Stat. (1894), 327. utes of Illinois and Tennessee is the of-
Tennessee. Code (1896), 6466. fense a felony. See statutes cited
Intent. Under the Tennessee statute supra, note I.
the exposure must have been "with 3. The defendant having been found
1010 Volume 5.
6764. CRUELTY TO CHILDREN. 6764.
mentioned one Elizabeth Chandler was a single woman and was the
mother of a certain male child known by the name of Albert of very
tender age and wholly unable by reason of his tender age to provide
himself with food or nourishment or to take care of himself, and that
during all the time aforesaid it was the duty of the said Elizabeth
Chandler to protect, shelter and nourish the said child, and to pro-
vide for and give and administer to the said child suitable food in
proper and sufficient quantities for the nourishment and support of
his body and the preservation of his health, she, the said Elizabeth
Chandler, during all the time aforesaid being able and having the
means to perform and fulfil her said duty. And the jurors aforesaid
upon their oath aforesaid further present that the said Elizabeth
Chandler, late of the parish of Speldhurst in the county of Kent, well
knowing the premises, and not regarding her duty in that behalf, but
being a person of unfeeling and inhuman disposition, on the first day
of October, in the year of our Lord one thousand eight hundred and
fifty-four, and continually from thence until the twenty-second day of
January, in the year of our Lord one thousand eight hundred and
fifty-five, at the parish aforesaid, in the county aforesaid, did unlaw-
fully, wilfully and on purpose give to the said child food and nourish-
ment in quantities wholly inadequate and insufficient for the support
and preservation of the body and health of the said child, and did
unlawfully [and] wilfully omit, neglect and refuse to provide for and
to give to the said child meat, drink or food in any sufficient or
proper quantity whatsoever, whereby, by reason of the premises last
aforesaid, the life of the said child was endangered, and the said
child became and was sick, ill, weak, starved and greatly emaciated
in his body, 1 to the great damage of the said child, and against the
peace of our said lady the Queen, her crown and dignity.
Form No. 6764.
(Precedent in Com. v. Burlington, 136 Mass. 435.)*
[Commonwealth of Massachusetts.
To the Justice of the First District Court of the Eastern Middlesex
District, holden in said District in the City of Maiden, for the
transaction of criminal business, within and for said District.
guilty on this indictment, the conviction must be proved. Reg. v. Phillpott, 6
was quashed, because there was no Cox. C. C. 140, Dears. C. C. 183.
evidence to show that the defendant 2. This complaint was held sufficient
had the means to maintain the child as under Mass. Stat. (1882). c. 270, 4,
alleged in the indictment. and is good under this statute as
For a similar indictment charging amended by Stat. (1885), c. 176, and
abandonment see Reg. v. Phillpott, Stat. (1893), c. 262.
6 Cox C. C. 140, Dears. C. C. 179. Similar statutes exist in the follow-
1. Neglect on the part of a parent to ing states, to wit:
provide an infant child with necessary Arizona. Pen. Code (1887), 442.
food and clothing is not a misdemeanor California. Pen. Code (1897), 270.
at common law unless some actual in- Idaho. Rev. Stat. (1887), 6782.
jury is done to the child; and in an in- Kentucky. Stat. (1894), 328.
dictment for that offense an averment Minnesota. Stat. (1894). &
that the child was actually injured is a Montana. Pen. Code (1895), fe 470.
necessary and material allegation and Utah. Rev. Stat. (1898), fe 4224.
1011 Volume 5.
6765. CRUELTY TO CHILDREN. 6766.
John Doe, of Wakefield, in the county of Middlesex, on behalf of the
commonwealth of Massachusetts, on oath, complains] x that Burkner F.
Burlington, late resident of Wakefield, in the county of Middlesex, is
the father of one Mary L. Burlington, a minor child under the age of
twenty-one years, and that the said Burkner F. Burlington, on the
first day of July, in the year of our Lord one thousand eight hundred
and eighty-two, at Wakefield, in the county of Middlesex, did knowingly
and unreasonably neglect to provide for the support of the said
Mary L. Burlington, the minor child of him, the said Burkner F. Bur-
lington, and that the said Burkner F. Burlington, the father of the
said Mary L. Burlington, the minor child aforesaid, from the said
first-mentioned day to the day of making this complaint, at Wakefiela
aforesaid, in the county aforesaid, knowingly and unreasonably has
neglected to provide for the support of the said Mary L. Burlington,
the minor child aforesaid, against the peace of the said Commonwealth
and the form of the statute in such case made and provided.
[John Doe.
Middlesex, ss. Received and sworn to the first day of August, in
the year of our Lord one thousand eight hundred and eighty-two,
before said court.
John Hancock, Clerk. J l
2. Against Any Person Having- Control of Child. 2
Form No. 6765.
(Precedent in Cowley v. People, 21 Hun (N. Y.) 4I?.) 3
[Court of General Sessions of the City and County of New York.
The People of the State of New York }
against
Edward Cowley. )
The grand jurors of the city and county of New Yor6,by this indict-
ment, accuse Edward Cmvley of the crime of neglecting to supply a
child in his custody with proper food, committed as follows:] 1
1. The words enclosed by [ ] will not to be injured, shall be guilty of a mis-
be found in the reported case, but have demeanor."
been added to render the form com- Similar statutes are to be found as
plete. follows:
2. Precedents. See also forms in Rex Colorado. Laws (1891), p. 60, 3.
v. Friend, R. & R. C. C. 20; Rex v. Illinois. Starr & C. Anno. Stat.
Ridley, 2 Campb. 650. (1896), p. 1263, par. 129.
3. This indictment contained five Minnesota. Stat. (1894), 6537.
counts, but the first and second counts Missouri. Rev. Stat. (1889), 3499.
alone were resorted to. The indict- New Jersey Gen. Stat. (1895), p.
ment was drawn under the New York 1717, 26; p. 1720, 38.
Act of 1876, c. 122, 4, providing that New York. Birds. Rev. Stat. (1896)
" whoever, having the care or custody p. 420, 44; p. 421, 45.
of any child, shall wilfully cause or Pennsylvania. Bright. Pur. Dig.
permit the life of such child to be en- (1894), p. 1017, 25.
dangered, or the health of such child to The statutes cited above have refer-
be injured, or who shall wilfully cause ence only to those who have the child
or permit such child to be placed in under their charge and control. In
such a situation that its life maybe en- Georgia and Washington, however, it is
dangered, or its health shall be likely provided that whoever shall deprive a
1012 Volume 5.
6766. CRUELTY TO CHILDREN. 6766.
First count. That Edward Cowley, late of the nineteenth ward of
the city of New York, in the county of New York aforesaid, being an
evilly-minded and cruelly-disposed person, and well knowing and
intending the premises hereinafter set forth, unlawfully, wilfully and
wickedly, on the twenty-sixth day of December, in the year of our Lord
one thousand eight hundred and seventy-nine, at the ward, city and
county aforesaid, did neglect to provide a certain child, then and
there known by the name of Louis Kulkusky, otherwise called Louis
Victor, and of which child he then and there had the care and custody,
and which said child was then and there in his custody, and was an
infant of tender age, to wit, of the age of five years, with, and to give
and administer unto the said child, proper, wholesome and sufficient
food, meat, drink, warmth, clothing, bed-covering and means of
cleanliness, and did therein and thereby wilfully cause and permit the
health of said child to be injured, against the form of the statute
in such case made and provided, and against the peace of the people
of the state of New York and their dignity.
Second count. And the jurors aforesaid upon their oath aforesaid
do further present: That afterwards, to wit, on the day and in the
year aforesaid, at the ward, city and county aforesaid, the said Ed-
ward Cowley, wilfully and wickedly, a certain child then and there
known by the name of Louis Kulkuski, otherwise called Louis Victor,
and of which child he then and there had the care and custody, and
which said child was then and there in his custody, and was an infant
of tender age, to wit, of the age of five years, and which said child
theretofore had been and then was diseased, sick and ailing in its.
body and limbs, and then and there required proper medicine and 1
medical attendance, did wilfully neglect to provide with, and to give
and administer unto said child due, proper and sufficient medicine and
medical attendance and care, when so as aforesaid diseased, sick and
ailing, and did therein and thereby wilfully cause and permit the
health of said child, to wit, the infant aforesaid, to be injured, against
the form of the statute in such case made and provided, and against
the peace of the people of the state of New York and their dignity.
\B. K. Phelps,
District- Attorney of the City and County of New York.]**
IV. ILLEGAL EMPLOYMENT.
1. In Acrobatic, Mendicant or Obscene Employment.
Form No. 6766.'
In the Superior Court of the City and County of San Francisco,
State of California.
child of necessary food or clothing shall been added to render the form com-
be punished, etc. plete.
Georgia. 3 Code (1895), 708. 2. This form is drawn under Cal.
Washington. Ballinger V s Anno. Pen. Code (1897), 272, which provides
Codes & Stat. (1897), 7071. that " Any person, whether as parent,
1. The words enclosed by [ ] will not relative, guardian, employer or other-
be found in the reported case, but have wise, having in his care, custody or
1013 Volume 5.
6767. CRUELTY TO CHILDREN. 6767.
The People of the State of California, plaintiff,
against
Richard Roe, defendant.
Richard Roe is accused by the district attorney of the said city and
county by this information of the crime of giving away and appren-
ticing for the purpose of rope-walking a child under the age of sixteen^-
years, in his care, custody and control, committed as follows: The
said Richard Roe, on the first day of January, A. D. iB98, at the said
city and county of San Francisco, and before the filing of this informa-
tion, was the father of one Robert Roe, a child under the age of six-
teen years, to wit, of the age of fourteen years, and on said date did
unlawfully give away and apprentice to one Samuel Short the said
Robert Roe for the vocation, use, occupation, calling, service and
purpose of rope-walking, contrary to the form, force and effect of the
statute in such case made and provided, and against the peace and
dignity of the people of the state of California.
Dated February 1, A. D. i898.
Daniel Webster,
District Attorney of said City and County of San Fnancisco.
2. In Manufacturing- or Mercantile Establishment.
Form No. 6 7 6 7 . 2
Newport, Sc. At the court of Common Pleas of the State of Rhode
Island and Providence Plantations, holden at Newport, within and for
control any child under the age of six- New Hampshire. Pub. Stat. (1891),
teen years, who shall sell, apprentice, c. 265, 3.
give away, let out, or otherwise dispose New Jersey. Gen. Stat. (1895), p.
of any such child to any person, under 1717, 27, 28.
any name, title, or pretense, for the New York. Birds. Rev. Stat. (1896),
vocation, use, occupation, calling, ser- p. 423, 48.
vice, or purpose of singing, playing on Rhode Island. Gen. Laws (1896),
musical instruments, rope-walking, 0.115, 4, 5.
dancing, begging, or peddling, in any' Wisconsin. Sanb. & B. Anno. Stat.
public street or highway, or in any (1889), 5 4587^.
mendicant or wandering business Obscene or Indecent Employment. All
whatsoever, and any person who shall the statutes cited above, save those of
take, receive, hire, employ, use, or have Arizona, California, Kansas and Mon-
in custody any child for such purpose, tana,make it illegal to employ or exhibit
or either of them, is guilty of a mis- a child in an obscene or immoral
demeanor." exhibition.
Similar statutes exist as follows: 1. Age. In most states the age fixed
Arizona. Pen. Code (1887), 444. by the statute is sixteen. In Indiana,
Colorado. Laws (1891), p. 59, I, 2. however, the age is fifteen; in Colorado,
Connecticut. Gen. Stat. (1888), 1417. Illinois, Kansas, New Hampshire and
Georgia. 3 Code (1895), 706. Wisconsin, fourteen; and in Connecticut
Illinois. Starr & C. Anno. Stat. and Georgia, twelve.
(1896), p. 1263, par. 131. In New Jersey it is made an offense
Indiana. Horner's Stat. (1896), so to hire, etc., for the purpose of rope-
6620. walking, etc., where the child is under
Kansas. Gen. Stat. (1889), 2170. fifteen, but for street singing or other
Kentucky. Stat. (1894), 326. mendicant pursuit it is an offense if the
Michigan. How. Anno. Stat. (1882), child is under eighteen.
1998. 2. Rhode Island. Gen. Laws (1896),
Minnesota. Stat. (1894), 6539. c. 68, i, 2, 12. Similar statutes exist
Montana. Pen. Code (1895), 472. as follows:
1014 Volume 5.
6768. CRUELTY TO CHILDREN. 6768.
the county of Newport, on the first Monday of February, in the year
of our Lord one thousand eight hundred and ninety- seven.
The grand jurors for'the state of Rhode Island and Providence Plan-
tations, in and for the county of Newport, upon their oaths present,
thatyW/// Doe, late of Newport, in said county, upon the first day of
January, in the year of our Lord one thousand eigfit hundred and
ninety-seven, with force and arms, at Newport, in the county of
Newport aforesaid, did then and there unlawfully, knowingly and
wilfully employ and suffer and permit to be employed in a certain
dry goods store there situate, known as " The Yankee Notion," in
which were employed a large number 1 of women and children, to
wit, twenty women and children, one David Roe, a child then under
twelve' 2 ' years of age, to wit, ten years of age, against the form of the
statute in such case made and provided, and against the peace and
dignity of the state.
Alexander Hamilton, Attorney-General.
3. In Mining.
Form No. 6768.*
The State of Indiana, Posey County, set:
Before me Abraham Kent, a justice of the peace for said county,
came John Doe, who, being duly sworn according to law, deposeth
and saith: That on or about the first day of June, in the year i85, at
the county of Posey and state of Indiana, one Samuel Short, late of
said county,* did then and there unlawfully take one Leonard A.
Ford, a child under the age of twelve* years, in certain underground
works, to wit, a coal mine there being, and did then and there unlaw-
fully employ said Leonard A. Ford in mining coal in such mine con-
trary to the form of the statutes in such case made and provided,
and against the peace and dignity of the state of Indiana.
John Doe.
Subscribed and sworn to before me this fifth day of June, i&98.
Abraham Kent, J. P. (SEAL)
Connecticut. Gen. Stat. (1888), to be within the Rhode Island statute.
I753-55- must employ not less than five persons
Massachusetts. Stat. (1894), c. 508, who are women or children. R. I. Gen.
6 I3 Laws (1896), c. 68, 2. In Midtiffm
Michigan. How. Anno. Stat. (Supp. not less than ten must be employed.
1890), I997<r3. How - Anno. Stat. (Supp. 1890), 9
New Hampshire. Pub. Stat. (1891), IQ97'4-
c. 93, 8 10. 2. Age. In New Hampshire the age
Wisconsin. Sanb. & B. Anno Stat. is ten; in Connecticut, Massachuetts and
(1889) 17280 Wisconsin, thirteen.
In Indiana it is unlawful for any 3. Indiana. Horner's Stat. (1896).
person, firm, company, corporation or 6623.
association, engaged in manufacturing Montana. Pen. Code
iron, steel, nails, metals, machinery or New Jersey. Gen. Stat. (1895), p.
tobacco, to employ or keep at work 1718. 30.
any child under twelve years of age. Washington. - Balhnger s Anno.
Horner's Stat. Ind. (1896), 21250 '* Sf 9- Codes & Stat. (1897), 3172.
1. Number Employed. The manu- 4. Age. In Montana the age i
facturing or mercantile establishment, teen years.
1015 Volume 5.
6769. CRUELTY TO CHILDREN. 6770.
4. Overworking in Factories.
Form No. 6769.'
(Commencing as in Form No. 6768, and continuing down to *) being
then and there the owner (or agent or overseer or foreman) of a cer-
tain cotton (or woolen) factory in said county, did then and there
unlawfully employ (or permit to be employed or employ and permit to be
employed), in the said cotton (or woolen) factory, of which he, the said
John Doe, then was the owner (or agent or overseer or foreman) as
aforesaid, one David Roe, he, the said David Roe, then being under
the age of eighteen years, 2 to wit, of the age of fourteen years, for a
longer period than ten hours 3 in one day, to wit, for a period of twelve
hours in one day, contrary (concluding as in Form No. 6768).
5. Violating- School Law.
Form No. 6770.*
State of Maine.
Kennebec, ss. At the Superior Court begun and held at Augusta,
within and for said county of Kennebec, on the first Tuesday of Septem-
ber in the year of our Lord one thousand eight hundred and ninety-
seven.
The jurors for the state upon their oath present that John Doe of
Augusta, in the county of Kennebec, manufacturer, on the first day of
September in the year of our Lord one thousand eight hundred and
ninety-six, at Augusta aforesaid, being then and there the owner (or
agent or superintendent) of a certain cotton (or woolen) manufactory in
said Augusta, did then and there unlawfully, wilfully and knowingly
1. Indiana. Homer's Stat. (1896), Vermont, fifteen; in Michigan, fifteen
2125. See also 2125^. for a female and fourteen for a male.
See also similar statutes as follows: 3. Hours of Employment. In Michi-
Connecticut. Gen. Stat. (1888), gan nine hours, and in Wisconsin eight
1745. hours, is the limit of a day's work.
Maine. Rev. Stat. (1883), c. 48, 15. 4. This form is drawn under Me.
Michigan. How. Anno. Stat. (Supp. Rev. Stat. (1883), c. 48, 13, 14.
1890), 1997^2. Similar statutes exist as follows:
Minnesota. Stat. (1894), 6541. Connecticut. Gen. Stat. (1888),
New Hampshire. Pub. Stat. (1891), 2105, 2106.
c. 180, 14, 16. Massachusetts. Stat. (1894), c. 508,
Vermont. Stat. (1894), 5146. 14.
Wisconsin. Sanb. & B. Anno. Stat. New Hampshire. Pub. Stat. (1891),
(1889), 1728. c. 93, ii, 12.
Employment Before and After Certain Rhode Island. Gen. Laws (1896), c.
Hoars. In Massachusetts and Minne- 64, 5, 10.
sota statutes exist prohibiting the em- Vermont.' Stat. (1894), 712, 713.
ployment of children under a certain In Maine an offender is to be pro-
age before the hour of seven in the ceeded against by indictment, and the
morning and after the hour of six at county attorney shall prosecute (Rev.
night. Stat. (1883), c. 48, 14), while in the
Massachusetts. Stat. (1894), c. 508, other states the prosecution is usually
14. by complaint before a justice or mu-
Minnesota. Stat. (1894), 6339. nicipal court, and by truant officers
2. Age. In Connecticut, Maine and where these officers exist.
Minnesota the age is sixteen years; in
1016 Volume 5.
6770. CRUELTY TO CHILDREN. 6770.
employ (or suffer to work or employ and suffer to work) in said manu-
factory one David Lee,-a. child then under twelve (or over twelve and
under fifteen) years of age, to wit, ten (or fourteen) years of age, the
said David Lee not having attended a public school or a private school
taught by a person qualified to be a public teacher for four (or three)
months of the year preceding such employment as aforesaid, against
the peace of said state, and contrary to the form of the statute in
such case made and provided.
Wolfe Londoner, Foreman.
Ralph Irons, County Attorney.
1017 Volume 5.
DAMAGES, OFFER TO LIQUIDATE.
BY THOMAS E. O'BRIEN.
I. THE OFFER, 1018.
II. THE ACCEPTANCE, 1019.
CROSS-REFERENCES.
For Forms relating to Offer to Allow Judgment, see the title COM-
PROMISE, ante, p. 12.
For Forms relating to Offer to Confess Judgment, see the title CON-
FESSION OF JUDGMENT, ante, p. 46.
I. THE OFFER.
Form No. 6771.'
Supreme Court, Albany County.
John Doe, plaintiff,
against
Richard Roe, defendant.
The above named defendant Richard Roe hereby offers that if he
fails in his defense in the above action now pending in this court, the
1. Statutory Provisions. In New York, whom the cause is tried. Code Civ.
in an action to recover damages for Proc., 737, as amended Laws (1877), c.
breach of contract, the defendant's at- 416 (Birds. Rev. Stat. (1896), p. 2198, 2).
torney may, with the answer, serve Similar or analogous provisions ex-
upon the plaintiff's attorney a written ist in the following states:
offer that if the defendant fails in his Arkansas. Sand. & H. Dig. (1894),
defense the damages may be assessed 5901, 5902.
at a specified sum. If the plaintiff Iowa. Code (1897), 3820, 3821.
serves notice that he accepts the offer Kentucky. Bullitt's Civ. Code (1895),
with or before the notice of trial, 635, 636.
and damages are awarded to him on Michigan. How. Anno. Stat. (1882),
the trial, they must be assessed accord- 7373, 7374-
ingly. Code Civ. Proc., 736 (Birds. Missouri. Burns' Anno. Pr. Code
Rev. Stat. (1896), p. 2198, i). If the (1896), 566.
plaintiff does not accept the offer, he North Carolina. Code (1883),
cannot prove it upon the trial; but if 575, 576.
the damages awarded to him do not North Dakota. Rev. Codes (1895),
exceed the sum offered, defendant is 5641, 5642.
entitled to recover the expenses, neces- South Carolina. 2 Rev. Stat. (1893),
sarily incurred by him in preparing 387, 388.
for trial, of the question of damages. South Dakota. Dak. Comp. Laws
The expenses must be ascertained and (1887), 5248, 5249.
the amount thereof determined by the Wisconsin. Sanb. & B. Anno. Stat.
judge, or the referee by or before (1889), 2790, 2791.
1018 Volume 5.
6772. DAMAGES, OFFER TO LIQUIDATE. 6772.
plaintiff's damages may be assessed at the sum of five hundred
dollars.
Oliver Ellsworth, Defendant's Attorney,
No. 106 State street, Albany, New York*
Dated this fifteenth day of March, i S98.
To Jeremiah Mason, Attorney for Plaintiff.
(Affidavit of attorney's authority.}*
II. THE ACCEPTANCE.
Form No. 67 72. 3
(Title of court and cause as in Form No. 6771.)
To Oliver Ellsworth, Attorney for Richard Roe-.
You will please take notice that the plaintiff above named hereby
accepts the offer of Richard Roe, the defendant above named, that if
he fails in his defense in the above action, plaintiff's damages may
be assessed at five hundred dollars.
Jeremiah Mason, Attorney for Plaintiff,
No. 106 State Street, Albany, New York.*
Dated \.\\\?, fifteenth day of March, iS98.
(Affidavit of attorney's authority. ) 4
1. Hun's Court Rules (1896), No. 2.
2. Affidavit of Attorney's Authority.
Unless the offer made as prescribed in
the statute is subscribed by the party
making it, his attorney must subscribe
it and annex thereto his affidavit to the
effect that he is duly authorized to make
it in behalf of the party. N. Y. Code
Civ. Proc., 740 (Birds. Rev. Stat.
(1896), p. 2198, 5). The following
form of affidavit is sufficient:
"Albany County, ss. Oliver Ells-
worth being duly sworn, says that he is
the attorney for the defendant Richard
Roe in the above entitled action and
that he is duly authorized by the said
Richard Roe to make the above offer to
liquidate damages in his behalf.
Oliver Ellsworth.
Sworn to before me this fifteenth day
of .March, rtqS.
(SEAL) Norton Porter. Notary Public."
3. Service of Notice of Acceptance. In
New York the notice of acceptance
must be served with or before the notice
of trial. Code Civ. Proc.. 736 (Birds
Rev. Stat. (1896^, p. 2198, i). See
also list of statutes cited supra, note
i, p. 1018.
4. Affidavit of Attorney's Authority.
When the acceptance is subscribed
by the attorney for the plaintiff, he
must annex thereto his affidavit to the
effect that he is duly authorized to make
it in behalf of the plaintiff. N. Y.
Code Civ. Proc., & 74o(Birds. Rev. Stat.
(1896), p. 2198, 5). The following
form of affidavit may be used under
this section:
"Albany County, ss. Jeremiah Mason,
being first duly sworn, says that he is
the attorney lor John Dot, the plaintiff
above named, and that he is duly au-
thorized by the said plaintiff to accept
the above offer to liquidate damages.
Jeremiah Mason.
Subscribed and sworn to before me
this fifteenth day of March, 189,?.
(SEAL) Norton Porter, Notary Public."
1019
Volume 5.
DANGEROUS AND VICIOUS ANIMALS.
BY W. R. BUCKMINSTER.
I. CIVIL ACTIONS FOR INJURIES, 1020.
1. By a Bear, 1021.
2. By a Bull, 1023.
3. By a Dog, 1024.
4. By a Horse, 1025.
5. By a Ram, 1026.
II. CRIMINAL PROSECUTIONS, 1027.
1. Allowing Rabid Dog to Run at Large, 1027.
2. Driving or Leading Uncaged Bear, 1027.
3. Keeping Unruly Bull Near Public Highway, 1028.
CROSS-REFERENCES.
for other Forms relating to Animals, see the title ANIMALS, vol. i,
p. 789.
I. CIVIL ACTIONS FOR INJURIES.!
1. Requisites of Complaint or Declara-
tion Generally. For the formal parts
of a complaint, petition or declaration
in a particular jurisdiction consult the
titles COMPLAINTS, vol. 4, p. 1019;
DECLARATIONS.
For statutes relating to civil liability
of the owners or keepers of a vicious or
dangerous animal see as follows:
Alabama. Civ. Code (1886), 1379.
Georgia. 2 Code (1895), 3821,
3822.
Tennessee. Code (1896), 2988,
2989.
Scienter, The ground of liability is
the keeping of the animal after notice,
actual or constructive, of its dangerous
habits, and such previous knowledge
must in general be alleged and proved.
Mason v. Keeling, 12 Mod. 332; Worm-
ley -v. Gregg, 65 111. 251; Keightlingerz/.
Egan, 65 111. 235; Vroomanz/. Lawyer, 13
Johns. (N. Y.) 339; Van Leuven v. Lyke,
i N. Y. 515. And see also Pickering v.
Orange, 2 111. 338; Partlow -v. Hag-
garty, 35 Ind.- 178; Murray v. Young,
12 Bush (Ky.) 337; Lyons v. Merrick,
105 Mass. 71; Hewes v. McNamara,
106 Mass. 281; Kelly v. Tilton, 2 Abb.
App. Dec. (N. Y.)495; Koney v. Ward,
2 Daly (N. Y.) 295; Wheeler z>. Brant,
23 Barb. (N. Y.) 324; Rider v. White,
65 N. Y. 54; M'Caskill v. Elliot, 5
Strobh. L. (S. Car.) 196; Oakes v.
Spaulding, 40 Vt. 347; Coggswell
z>. Baldwin, 15 Vt. 404; Kertschacke v.
Ludwig, 28 Wis. 430. But where the
animal is of a wild and ferocious
nature, notice is presumed and need
not be alleged. Earl v. Van Alstine,
8 Barb. (N. Y.) 630.
An averment that the defendant knew
the dog " was of a ferocious and mis-
chievous nature " is conformable to
precedent and sufficient after verdict.
M'Caskill v. Elliot, 5 Strobh. L. (S. Car.)
196. And an averment that defendants
kept a dog " wilfully, unlawfully, and
maliciously," with full knowledge of
his ferocious and vicious habits, and
making no effort to protect the public
from his vicious attacks, will justify an
award of exemplary damages. Cameron
v. Bryan, 89 Iowa 214.
Negligence of Defendant. The
ground of liability being the keeping
of the animal with or after notice of
its dangerous habits, no negligence in
1020
Volume 5.
6773. DANGEROUS AND VICIOUS ANIMALS. 6773.
1. By a Bear.
Form No. 6773.
(Precedent in Marqueti/. La Duke, 96 Mich. 596.)'
[The Circuit Court for the County of Menominee.
County of Menominee, ss.] 2 Julian Narcisse Marquet, by his next
friend, Narcisse Marquet, of the city of Menominee, in said county,
plaintiff herein, by Sawyer 6 Waite, his attorneys, complains of Anton
La Duke, defendant herein, of a plea of trespass on the case, filing
this declaration, entering rule to plead, etc., as commencement of suit.
For that whereas, the defendant above named, on October 24, i&91,
and for a long time previous thereto, had occupied and controlled
the Eagle Hotel, a public house, situated in the city of Menominee,
Mich.; that there were public grounds surrounding said hotel, to
which the public was invited, and through which it (the public) was
freely permitted to pass; that said Eagle Hotel, on said 24th day of
October, was occupied as a public house of entertainment, and the
grounds about the same were open as a place of recreation to people
in a public way, and were unenclosed, free access being given to said
grounds from Ogden avenue, a public street, on the south, and from
Z>##/0/avenue, anotherpublic street, upon the north ; that upon the said
24th day of October, and for a long time, to wit, for one month or more,
previous thereto, the defendant kept two black bears in the grounds
guarding or securing it need be averred.
Woolf v. Chalker, 31 Conn. 121; Brooks
v, Taylor, 65 Mich. 208; May v. Bur-
dett, 9 Q. B. 101, 58 E. C. L. 99.
Negativing Plaintiff's Negligence. It
is said to be neither necessary nor
customary to insert an averment of due
care on the part of the plaintiff. 2 Chit.
PI. 562, 563; 2 Green Pr. 1290; Popple-
well v. Pierce, 10 Cush. (Mass.) 509;
Brooks v. Taylor. 65 Mich. 208.
By Monke r. In May v. Burdett, 9
Q. B. 101, 58 E. C. L. 99. the declara-
tion which was held to be sufficient,
omitting the formal parts, was as fol-
lows: " Before and at the time of the
damage and injury hereinafter men-
tioned to the said Sophia the wife of
the said Stephen May, wrongfully and
injuriously kept a certain monkey, he
the defendant well knowing that the
said monkey was of a mischievous and
ferocious nature, and was used and
accustomed to attack and bite mankind,
and that it was dangerous and im-
proper to allow the monkey to be at
large and unconfined: which said
monkey, whilst the said defendant kept
the same as aforesaid, heretofore and
before the commencement of this suit,
to wit, on the zd of September, 1^44, did
attack, bite, wound, lacerate and injure
the said Sophia, then and still being the
1021
wife of said Stephen May, whereby the
said Sophia became and was greatly
terrified and alarmed, and became and
was sick, sore, lame and disordered, and
so remained and continued for a long
time, to wit, from the day and year
last aforesaid to the time of the com-
mencement of this suit; whereby, and
in consequence of the alarm and fright
occasioned by the said monkey so at-
tacking, biting, wounding, lacerating
and injuring her as aforesaid, the said
Sophia has been greatly injured in her
health," etc.
1. The defendant in this case ap-
pealed from the verdict and judgment
rendered against him, but the judg-
ment was affirmed.
See substance of petition in a similar
case in Vredenburg v. Behan, 33 La.
Ann. 627, wherein it was held that where
members of an unincorporated club
kept a bear on their premises, and the
bear slipped his collar and injured a
man, who died in consequence; the
members of the club were all lia-
ble, including one who, being absent,
knew nothing of the bear.
2. The words enclosed by [ ] will
not be found in the reported case,
but have been added to render the form
complete.
Volume 5.
6773. DANGEROUS AND VICIOUS ANIMALS. 6773.
about said hotel, between it and Ogdcn avenue; that said bears were
untamed, savage, and ferocious, which was well known to the defend-
ant; that said bears were not confined or excluded from contact with
people who passed through said grounds, save and except by a chain
fastened to a collar about their necks, and connected to a post in the
ground at the other end, said chain being 10 or 12 feet long; that
there was a way or road leading from Ogden avenue to Dunlap avenue,
aforesaid, through the grounds above mentioned, and near where the
bears aforesaid were placed, along which way, people men, women
and children and vehicles were allowed and invited to pass by said
defendant, in close proximity to said bears, so close that said bears
could seize persons passing along the same; that on said 24th
day of October, aforesaid, the plaintiff herein, a boy between five and
six years of age, in company with other children, was passing through
the grounds contiguous to said Eagle Hotel, near where said bears
were chained, when, without any negligence on the part of the plain-
tiff, one of said bears so kept and owned by defendant as aforesaid
seized plaintiff in a ferocious manner, with its paws and teeth, and
lacerated, bit, bruised and scratched him, making large wounds in
his head and body with his claws and teeth, and otherwise lacerated
and injured the plaintiff, whereby his under jaw was broken in three
places, his left arm broken in two places and shoulder smashed in a
frightful manner, and other injuries then and there did to the plain-
tiff, whereby he has suffered great physical pain and anguish, having
to undergo painful surgical operations by reason thereof, being con-
fined to his bed in a critical condition for a long time; that said
injuries were caused solely on account of the negligence, careless-
ness, recklessness, and heedlessness of the defendant, who was well
aware and had full knowledge and notice of the ferocious and savage
nature and ugly disposition of said bears; that said defendant was
negligent, heedless, reckless and careless in keeping said bears in a
place so exposed, without providing a watch or guard over them, and
without placing a fence or pen around them, and defendant was guilty
of recklessness and negligence in keeping said bears in the open
grounds, where people could come in contact with them; that it was
heedless and reckless to keep said bears in such an exposed place,
fastened with a chain as long as the one with which they were fast-
ened on said day; that it was negligent in said defendant to keep
said bears anywhere without having them securely guarded and pro-
tected, that children of tender years could not come in contact with
them; that plaintiff suffered great damage by reason of the biting,
scratching, wounding, bruising, breaking and lacerating, as aforesaid,
whereby he was caused great pain and suffering, and permanently
disabled and crippled, to wit, to the amount of $10,000. Therefore
the plaintiff demands judgment against the defendant for the sum of
$10,000, together with the costs in and about this action incurred
and expended.
[Sawyer 6 White,
Attorneys for Plaintiff.] 1
1. The words enclosed by [ ] will not be found in the reported case, but have
been added to render the form complete.
1022 Volume 5.
6774. DANGEROUS AND VICIOUS ANIMALS. 6774.
2. By a Bull.
Form No. 6774.
(Precedent in Brooks v. Taylor, 65 Mich. 209.)'
State of Michigan, \
County of Oceana. \ ss '
The circuit court for the county of Oceana.
Solomon Brooks, plaintiff herein, by L. G. Rutherford, his attorney,
complains of Lewis L. Taylor, defendant herein, in a plea of trespass
on the case, filing this declaration as commencement of suit:
For that, whereas, the said defendant heretofore, to wit, on the
first day of July, iS85, at the township of Leavitt, in the county of
Oceana, and from thence for a long space of time, to wit, until and
at the time of the damage and injury of the said plaintiff as here-
after mentioned, to wit, at the township and county aforesaid, wrong-
fully and injuriously did keep a certain bull, the said defendant well
knowing that the said bull there was used and accustomed to attack
and gore, wound, and injure mankind, to wit, at the township and
county aforesaid, and which said bull afterwards, and while said
defendant kept the same as aforesaid, to wit, on the tenth day of
July, i&85, at the township of Leavitt, in the county of Oceana afore-
said, did attack, and with its horns gore and bruise, said plaintiff,
and did then and there greatly lacerate, hurt, bruise and wound the
back, shoulder, and side of, and cause great internal injury to, the
said plaintiff; and thereby he, the said plaintiff, then and there
became and was sick, sore, lame, and disordered, and so remained
and continued for a long space of time, to wit, for a space of eight
months, thence next following, during which time the said plaintiff
thereby suffered and underwent great pain, and was thereby then
and there hindered and prevented from performing and transacting
his lawful affairs and business by him during that time to be per-
formed and transacted; and also, by means of the premises, he, the
said plaintiff, was thereby then and there put to great expense, costs,
and charges, in the whole amounting to a large sum of money, to
wit, the sum of one thousand dollars, in and about endeavoring to be
cured of the said wounds, sickness, lameness and disorder so occa-
sioned as aforesaid, and has been, and is, by means of the premises,
otherwise greatly injured and damnified, to wit, at the township and
county aforesaid, [and therefore he brings his suit, etc.
L. G. Rutherford, Attorney for Plaintiff.] 2
1. Judgment in this case having re- injure mankind, and that the place
suited in favor of the plaintiff, defend- of keeping need not be stated. It is
ant brought error, but the judgment further held that it is not usual or cus-
was affirmed, it being held that the ternary to negative negligence on the
owner's negligence was sufficiently set part of the plaintiff,
forth by alleging that he wrongfully 2. The words enclosed by [ J will not
and injuriously kept the animal, well be found in the reported case, but have
knowing that it was used and accus- been added to render the form com-
tomed to attack and scare, wound and plete.
1023 Volume 5.
6775. DANGEROUS AND VICIOUS ANIMALS. 6776.
3. By a Dog. 1
Form No. 6775.
(8 Wentw. PL 437.)
Markham and Le Blanc.
Trin. Term, 59 Geo. III.
London, to wit. John Doe complains of Richard Roe being in the
custody of the marshal of the marshalsea of our lord the now king, be-
fore the king himself, of a plea of trespass on the case;* for that
whereas the said Richard Roe on the tenth day of May, A. D. iS09, at Lon-
don aforesaid, knowingly and wilfully kept a certain dog called a bull-
dog, which said dog was used and accustomed to bite mankind, he the
said Richard Roe then and there well knowing that the said dog was
so used and accustomed to bite mankind as aforesaid, which said dog
being then the dog of the said Richard Roe on the tenth day of May,
A. D. i&09, at London aforesaid, did furiously seize upon and vehe-
mently bite the said John Doe, and by so seizing upon and biting him
the said John Doe, did so greatly tear, lacerate, mangle, and mar the
face of him the said John Doe and other parts of the body of the
said John Doe and otherwise so greatly hurt, injure, and wound him,
that the said John Doe was not only thereby rendered in great ter-
ror and danger of his life, and lost large quantities of his blood, but
the said John Doe was and is very much bruised, wounded, maimed,
and disfigured in his face, and by reason of the said bites, and of the
hurts, injuries, wounds, mars, and lacerations thereby occasioned,
the said John Doe was and became sick and disordered, and so re-
mained sick and disordered continually from that time until the
exhibiting the bill of the said John Doe, and during all that time
suffered and underwent great and excruciating pains and tortures
both of body and mind, and was forced to lay out and expend,
and hath actually laid out and expended a large sum of money, to
wit, the sum of fifty pounds of lawful money of Great Britain, in and
about his endeavors to effect a cure in this behalf, and to heal the
said hurts, injuries, mars, and lacerations, and hath also during the
said time, been wholly prevented and hindered from following and
transacting his lawful affairs and business, and been otherwise put
to great inconvenience, to wit, at London aforesaid. To the damage of
the said John Doe of 50, and therefore he brings his suit, etc.
( John Den
Pledges to prosecute < and
( Richard Fenn.
Form No. 6776.*
State of Indiana, ) Posey Circuit Court.
Posey County. \ S! October Term, i807.
1. For other forms of declarations 2. This complaint contains the facts
in actions to recover damages for in- which were held on demurrer to be
juries caused by a dog see Hussey v. sufficient in Partlow v. Haggarty, 35
King, 83 Me. 569; Searles v. Ladd, 123 Ind. 178.
Mass. 580; French v. Wilkinson, 93
Mich. 323; 2 Chit. PL 287.
1024 Volume 5.
6777. DANGEROUS AND VICIOUS ANIMALS. 6777.
John Doe, plaintiff, \
against
Richard Roe, defendant! )
John Doe, plaintiff, complains of Richard Rot, defendant, and says
that heretofore, to wit, on the first day of February, iB97, and for a
long time prior to said date, the defendant kept a dbg which, as he
well knew, was accustomed to attack and bite all mankind, yet
defendant wrongfully and negligently allowed said dog to go at iarge
without being properly secured. That on said/rrf day of February,
i8P7, the said dog, without any fault on the part of said plaintiff,
attacked, bit and wounded plaintiff by (Here state the nature of the
injuries received}, by reason whereof the plaintiff became and was
sick and disordered for ten weeks, during which time he was unable
to attend to his business, and incurred in and about his endeavors to
effect a cure expenses to the amount of one hundred and fifty dollars.
Wherefore plaintiff demands damages for five hundred dollars, and
for other relief.
Jeremiah Mason, Plaintiff's Attorney.
4. By a Horse.
Form No. 6777.
(Precedent in Popplewell v. Pierce, 10 Cush. (Mass.) 509.)'
Middlesex, Sup. Ct.
Edwin Pierce. } Plaintiff>s Declaration.
And the plaintiff says] 2 that the defendant, heretofore, to wit, on
the twenty-sixth day of January last past, and from thence, for a long
space of time, to wit, until and at the time of the damage and injury
to the said plaintiff, as hereinafter mentioned, to wit, at Lawrence
aforesaid, wrongfully and injuriously did keep a certain horse which
was, during all that time, used and accustomed to attack and bite
mankind; he, the said defendant, during all that time, well knowing
that the said horse was used and accustomed to attack and bite man-
kind, to wit, at Lawrence aforesaid; and which said horse, afterwards
and whilst the said defendant so kept the same as aforesaid, to wit,
on the twenty-eighth day of January last past, at Lawrence aforesaid,
did attack and bite the said plaintiff, and did then and there greatly
lacerate, hurt, wound, and bruise the back of the said plaintiff, and
thereby she the said plaintiff then and there became sick, sore, lame,
and disordered, and so remained and continued for a long space of
time, to wit, the space of seven weeks then next following, and still
continues sick, sore, lame, and disordered thereby; during all
which time the said plaintiff thereby suffered and underwent,
1. On motion in arrest of judgment, defendant's negligence in keeping the
it was held in this case that a declara- horse.
tion charging that the defendant wrong- 2. The words enclosed by [ ] will not
fully kept a horse accustomed to bite be found in the reported case, but
mankind, and that the defendant knew have been added to render the form
it, need not aver that the injury com- complete.
plained of was received through the
5 E. of F. P. 65. 1025 Volume 5.
6778. DANGEROUS AND VICIOUS ANIMALS. 6778*
and still suffers and undergoes, great pain, and was thereby
then and there, and still is, hindered and prevented from performing
and transacting her lawful affairs and business by her to be per-
formed and transacted; and also, by means of the premises, she, the
said plaintiff, was thereby and still is, put to great expense, cost, and
charges, in the whole amounting to a large sum of money, to wit,
seventy dollars, in and about endeavoring to be cured of the said
wounds, sickness, lameness, and disorder, so occasioned as aforesaid,
and hath been and is, by means of the premises, otherwise greatly
injured and damnified, to wit, at Lawrence aforesaid, to the damage
[of the plaintiff as she says of three hundred dollars.
G. P. Briggs, Plaintiff's Attorney.] 1
5. By a Ram. 2
Form No. 6778.
(8 Wentw. PI. 581.)
(Commencing as in Form No. 6775, and continuing down to *) for that
whereas the said Richard Roe, on the first day of May, 1788, at Rippon,
in the said county, was possessed of and kept divers, to wit, two
tups or rams, the same being then and there very vicious, fierce, unruly,
and very improper to go at large and to wander about; yet the said
Richard Roe well knowing the said tups and rams to be so vicious,
fierce, unruly, and improper to go at large and wander about, after-
wards, to wit, on the same day and year aforesaid, at Rippon afore-
said, negligently, remissly, and carelessly permitted and suffered the
said tups or rams to go at large and wander about from place to
place, which said tups or rams of the said Richard Roe afterwards,
to wit, on the same day and year aforesaid, at Rippon aforesaid, so
1. The words enclosed by [ ] will not the State; and being so wrongfully and
be found in the reported case, but negligently at large and without any
have been added to render the form keeper, or other restraint, said ram on
complete. said day came upon the premises of
2. Precedent. In Moulton v. Scar- one Henry Moulton in said Scarborough,
borough, 71 Me. 267, the declaration where the plaintiff then lawfully was,
was held to state a cause of action and while she was in the front yard of
against a town for injuries caused by said Henry's premises and near the
a vicious ram. Omitting the formal house, and in the exercise of due and
parts, the declaration was as follows: proper care, said ram suddenly at-
" For that the said defendants at said tacked and struck the plaintiff with
Scarborough, on the twenty-ninth day of great force and threw her violently
December, A. D. eighteen hundred and upon the ground, breaking her left hip,
seventy-seven, and for a long time prior and greatly jarring and bruising her
thereto, were the owners and possessed whole person, by reason of which the
of a certain ram, of vicious disposition plaintiff has ever since been confined to
and accustomed to attack and butt per- her bed, and has constantly suffered
sons, all of which was then and there great pain, and been put to great ex-
well known to the defendants; yet the pense for doctoring and nursing, and
defendants neglecting their duty in the been unable to do work as she formerly
premises, and not exercising proper had done; and is not likely ever to re-
and suitable care and restraint over cover from said injury. Whereby an
said ram, carelessly and negligently, action hath accrued to said plaintiff to
on said twenty-ninth day of December, have and recover of said defendants,
allowed him to be at loose and run at compensation for her said injuries,
large, to the danger of the citizens of which she alleges is," etc.
1026 Volume 5.
6779. DANGEROUS AND VICIOUS ANIMALS. 6780.
being at large and suffered to wander about by the neglect and
default of the said Richard Roe, broke and entered a certain close of
the said John Doe, lying and being in the said parish of Rippon, in the
said county, the said close being then and there sufficiently fenced
and inclosed, and then and there attacked, fought with, bruised, and
wounded a certain tup or ram of the said John Doe of great value,
to wit, of the value of twenty pounds, then being in the said close of
the saidfo/in Doe, in a very grievous manner, insomuch that the said
tup or ram of the said John Doe afterwards, to wit, on the same day
and year aforesaid, at Rippon aforesaid, died, to the damage (conclud-
ing as in Form No. 6775).
II. CRIMINAL PROSECUTIONS.!
1. Allowing* Rabid Dog to Run at Large.
Form No. 6779.*
The State of Alabama. } . ..
Dale County. \ Circutt Court > October Term ' l897 '
The grand jury of said county charge that before the finding of
this indictment, Richard Roe knowingly, wilfully and unlawfully did
allow a certain dog belonging to him the said Richard Roe (or under
the charge and control of him the said Richard Roe), which had become
rabid (or which he had information or good reason to believe had been
bitten by a rabid dog), to run at large within six months after becom-
ing rabid (or having been bitten), as aforesaid, against the peace and
dignity of the state of Alabama.
Daniel Webster, Solicitor of the third circuit.
2. Driving or Leading Uncaged Bear.
Form No. 6 7 8 o , s
State of Missouri, ) In the Barton Circuit Court,
County of Barton. j SS ' February Term, A. D. i898.
1. Requisites of Indictment, etc. Gen- Washington. Ballinger's Anno.
erally. For the formal parts of an Codes & Stat. (1897), 3485.
indictment, information or criminal Manslaughter. For statutes making
complaint in a particular jurisdiction it manslaughter where death of human
consult the titles INDICTMENTS; IN- being ensues from keeping a vicious
FORMATIONS; CRIMINAL COMPLAINTS, animal see as follows:
ante, p. 930. California. Pen. Code (1897), g 399.
For statutes relating to criminal prose- Florida. Rev. Stat. (1892), 55 2389.
cutions for various offenses connected Idaho. Rev. Stat. (1887), 93'-
with dangerous and vicious animals Minnesota. Stat. (1894), 6452.
see as follows: Mississippi. Anno. Code (1892),
Alabama. Crim. Code (1886), 1162.
4171; Acts (1894-5), p. 696, No. 373. New York. Pen. Code, g 196 (Birds.
District of Columbia. Com?. Stat. Rev. Stat. (1896), p. 1466, 18).
(1894), p. 48, 9. 2. Alabama. Acts (1894-1895), p. 696,
Missouri. Rev. Stat. (1889), 3923. No. 373. See also supra, note I, p.
New York. Birds. Rev. Stat. (1896), 1027, for other statutes against allow-
p. 1938, cl. n. ing dangerous or vicious animals to run
Oregon. Hill's Anno. Laws (1892), at large.
| !894. 3. Afissouri.Rev. Stat (1889), 3923.
1027 Volume 5.
6781. DANGEROUS AND VICIOUS ANIMALS. 6781.
The grand jurors for the state of Missouri, impaneled, sworn ana
charged to inquire within and for the county of Barton and state
aforesaid, do present that Richard Roe, on the first day of January,
in the year of our Lord one thousand eight hundred and ninety-eight,
in the county aforesaid, did unlawfully lead and drive through and in
said Barton county, in the state of Missouri, a certain bear (or
other savage animal, naming if), a savage animal, wild by nature, the
said bear being then and there uncaged, against the peace and dig-
nity of the state.
Daniel Webster,
Prosecuting Attorney for the County of Barton.
3. Keeping Unruly Bull Near Public Highway. 1
Form No. 6781.
(3 Chit. Cr. L. 642.)
Essex. The jurors for our lord the king, upon their oath present
that Richard Roe, late of the parish of Danbury in said county , yevman,
on the first day of May in the year of our Lord one thousand eight
hundred and one, and on divers other days and times between that
day and the day of the taking of this inquisition, unlawfully did keep
at large, and still doth keep at large, a certain bull, of a very fierce,
furious, and unruly nature, in a certain open field called Black acre,
situate, lying, and being in the parish of Danbury, in the said county
of Essex, (the same field, on the days and times aforesaid, and still
being, in the possession and occupation of him the said Richard
Roe) and, that from time whereof the memory of man is not to
the contrary, there was and still is 2 a certain ancient and common
public footway, leading from the town of Shrewsbury, in the parish
aforesaid, through and along the said field, towards and unto the
town of Hampden in the same county, used for all the liege subjects
of our said lord the king, to pass and repass, in, through, over, and
along the same, at their free will and pleasure, about their lawful
affairs and business. And that the said bull, on, the said first day of
May, at the parish of Danbury aforesaid, furiously ran at, to, and
against one Sarah Short, a liege subject of our said lord the king,
then passing in and along the said footway, in the said field, about
her lawful affairs and business; and then and there, with his head
and horns, furiously pushed at, cast down, and prostrated the said
Sarah Short there, and greatly hurt, bruised, gored and wounded the
said Sarah Short in and upon the left shoulder of her the said Sarah
Short, insomuch that her life was greatly despaired of. And the
jurors aforesaid upon their oath aforesaid, do further present, that
the said bull afterwards, to wit, on the said first day of May, and on
New York. Birds. Rev. Stat. (1896), 2. The preferable allegation is, " that
p. 1938, cl. ir. before, and at the time of the continu-
1. Baiting Bull in Public Place. For ing of the offense hereinafter men-
an indictment for baiting a bull in a tioned, there was and still is a certain
market place being the king's high- common and public footway," etc. 3
way see 4 Wentw. PI. 213. Chit. Cr. L. 642.
1028 Volume 5.
6781. DANGERO US AND VICIO US ANIMALS. 6781.
the said other days and times above mentioned, at the parish of
Danbury, aforesaid, so being in the said field, and of such nature as
aforesaid, furiously ran at and after divers other liege subjects of our
said lord the king, then passing and repassing, in and along the said
footway, in the said field there, about their lawful affairs and busi-
ness and thereby greatly affrighted, terrified, and alarmed, the said
last mentioned subjects, and divers other liege subjects of our said
lord the king, insomuch that the same subjects on the days and times
aforesaid, having occasion to pass and repass, in and along the said
footway, in the said field, could not, nor can they now pass or repass
in and along the same, without great hazard and danger of being
torn, gored, and wounded by the said bull, (he the said Richard Roe
on the said days and times respectively above mentioned, and long
before, and still well knowing the said bull to be of such fierce,
furious, and unruly nature, and accustomed to run at and after,
and injure persons passing and repassing, over, through, and
along the said field there,) to the great damage of the said Sarah
Short, to the great terror and common nuisance of all the liege sub-
jects of our said lord the king, passing and repassing, in and along
the said footway, in the said field there, to the evil and pernicious
example of all others, and against the peace of our said lord the king,
his crown and dignity.
1029 olumc 5.
DEAD BODIES AND CEMETERIES.
BY MICHAEL F. HENNESSY.
I. ACTIONS RELATING TO CEMETERIES, 1031.
1. By Cemetery, 1031.
a. Assessment Proceedings, 1031.
(1) Petition for Certiorari to Reinew Assessment on
Cemetery Property, 1031.
(2) Answer in Action to Vacate Assessment, 1032.
b. To Restrain Burial of Noncommunicant, 1034.
c. To Recover Plot Answer Setting Up Dedication and
Occupancy, 1036.
2. Against Cemeteries, 1037.
a. Petition for Mandamus to Compel Issuance of Burial
Permit, 1037.
b. Bill for Permission to Remove Body, 1041.
c. Bill for Injunction to Prevent Removal of Body, 1044.
d. Bill to Compel Restoration of Body to Lot, 1045.
e. Actions for Damages, 1048.
(1) For Burying Stranger in Plaintiff's Plot, 1048.
(2) For Injuries Caused by Poison Ivy, 1049.
(3) For Removal of Body from Plot, 1050.
/. By Holders of Cemetery Bonds to Compel Accounting, 1052.
II. ACTION FOR PERFORMING AUTOPSY WITHOUT PERMISSION, 1053.
III. CRIMINAL PROSECUTIONS, 1056.
1. For Failure to Bury Dead Body, 1056.
2. For Removing Body, 1057.
3. For Stealing Body, 1058.
a. For Purpose of Dissection, 1058.
b. For Purpose of Selling, 1059.
4. For Receiving Stolen Body, 1060.
5. For Destroying Cemetery Property, 1061.
CROSS-REFERENCES.
For Forms in Prosecutions for Concealment of Death, see the title CON-
CEALMENT OF BIRTH OR DEATH, ante, p. 30.
For Forms for Incorporation, where Incorporation Proceedings are had
in Court, see the title CORPORATIONS, ante, p. 523.
For Forms in Proceedings to Condemn Private Property for Cemetery
Purposes, see the title EMINENT DOMAIN.
For matters of Procedure, generally, see the title CEMETERIES AND
BURIALS, 3 ENCYCLOPAEDIA OF PLEADING AND PRACTICE,
p. 910.
1030 Volume 5.
6782. DEAD BODIES AND CEMETERIES. 6782.
I. ACTIONS RELATING TO CEMETERIES.
1. By Cemetery.
a. Assessment Proceedings.
(1) PETITION FOR CERTIORARI TO REVIEW ASSESSMENT ON CEMETERY
PROPERTY. 1
Form No. 6782.*
To Hon. Willard Bartlett, a Justice of the Supreme Court of the
Second Judicial District.
The petition of the Trustees of St. Patrick's Cathedral, in the city of
New York, respectfully shows that your petitioners are the owners in
fee of certain lands and real estate situate in the second ward of Long
Island City, Queens county, New York, hereinafter described. That
your petitioner is a corporation duly incorporated pursuant to the
laws of the state of New York.
That said lands have been owned by your petitioner for upwards
of fifteen years last past, and for many years past have been and are
still used for cemetery purposes, being actually and exclusively used
and occupied for the purpose of the burial therein of the mortal
remains of human beings.
And on information and belief:
That James Davren, William Feth and George Casey are now assessors
of Long Island City, and William Smith is the supervisor thereof.
That the said lands have never before, since they were purchased
by your petitioner and used and occupied for cemetery purposes as
aforesaid, been assessed for purposes of taxation until this year.
That said lands have been assessed this year as follows:
Block. Lot. Valuation in Dollars.
295 29 1-2 Unknown $57, 500
296 47 3-4 Unknown 42,500
297 48 1-4 Unknown 87,500
298 89 Unknown 87, 500
299 54 1-4 Unknown 45,000
That by chapter 310 of the laws of 1879 it is provided that no land
actually used and occupied for cemetery purposes shall be sold under
execution or for any tax or assessment, nor shall such tax or assess-
ment be levied, collected or imposed.
That said assessment is illegal because controverting the terms of
said statute.
That said assessment is unequal, in that the assessment has been
made at a higher proportionate valuation than any other real estate
on the same roll by the same officers.
1. For other forms relating to the general term of the supreme court af-
review of assessment proceedings by firming an order of the special term
certiorari see vol. 4, p. 586 ft seq. striking from the assessment
2. This petition is copied from the assessment on the relator's real estate
records in People v. Davren, 131 N. Y. was affirmed.
601, in which case an order of the
1031 Volume 5.
6783. DEAD BODIES AND CEMETERIES. 6783.
That it is erroneous by reason of overvaluation.
That said assessors, on the third fay of December, i890, finally com-
pleted and verified said assessment roll and delivered same to Will-
iam Smith, supervisor, the officer designated by law for that purpose.
And your petitioners allege that they have been aggrieved and
injured by such illegality, such erroneous assessment and such
inequality in the assessment of their said property and the other real
estate in said town.
That the value of petitioners' real property is substantially the
same this year as it was during the years i867, 1888, and iS89.
That several pieces of land so as aforesaid assessed at an aggre-
gate of two hundred thousand dollars are not in greater value in
proportion to the other real estate in said town than one hundred
thousand dollars.
Wherefore, your petitioners pray that a writ of certiorari may issue
to the so\& James Davren, William Feth and George Casey, assessors,
and William Smith, supervisor, commanding them to certify and
return the assessment roll made by them in the year iS90, or a sworn
or certified copy thereof, and all papers appertaining to said assess-
ment, and the proofs and papers before them relating to the value of
said petitioners' said property and the other real estate in said town.
December 18, i890.
Trustees of St. Patrick's Cathedral
in the City of New York,
(SEAL) by Geo. B. Coleman, Clerk.
T. G. Barry,
Attorney for Petitioners,
120 Broadway, N. Y.
(Verification by Coleman as clerk.)*
(2) ANSWER IN ACTION TO VACATE ASSESSMENT.
Form No. 6783.*
Superior Court of Buffalo.
The Buffalo City Cemetery, plaintiff, )
vs. v Answer.
The City of Buffalo, defendant. )
The defendant, for its answer to the complaint in this action,
states as its first defense thereto, that it has not knowledge or in-
1. For forms of verification consult rates and assessments." The general
the title VERIFICATIONS. term of the superior court of the city of
2. This form is copied from the record Buffalo reversed a judgment in favor of
in Buffalo City Cemetery v. Buffalo, 46 the plaintiff entered upon the decision
N. Y. 506. The action in that case was of the court at special term, and dis-
brought by the cemetery corporation to missed plaintiff's complaint, and this
vacate an assessment to defray the ex- judgment was affirmed on appeal, the
pense of laying certain sidewalks in the court of appeals holding that "public
vicinity of their property, the corpora- taxes, rates and assessments are those
tion claiming that under the provisions which are levied for some public or
of an act providing for the incorpora- general use or purpose, in which the
tion of rural cemetery corporations they person assessed has no direct, immedi-
were exempt from "all public taxes, ate and peculiar interest. Those charges
1032 Volume 5.
6783. DEAD BODIES AND CEMETERIES. 6783.
formation sufficient to form a belief whether the following facts
alleged in said complaint are true, and therefore it denies the same,
that is to say:
That the plaintiff is a rural cemetery association, incorporated by
virtue of an act of the state of New York, entitled *i An Act author-
izing the incorporation of rural cemetery associations," passed April
27, 1847, and the various acts amendatory thereof; that the plaintiff
is the owner of portions of a tract of land fronting on North street
in the city of Buffalo, and bounded on the east by Delaware street
455 feet, north by North street 454.6 feet, and south by a line parallel to
North street 357 feet, and west by Bmvery street 443 feet; that the land
owned by the plaintiff is held and occupied by it as a burial ground for
the dead, and for cemetery purposes only, and not otherwise; that a
large portion of said tract of land is owned, held and occupied by
various persons other than the plaintiff, to whom the same has been
conveyed by the grantors of this plaintiff in small lots or parcels, to
be by them respectively held, used and occupied as a place for the
burial of their dead, and that the same was so held and occupied by
them at the time of the making of the assessment therein mentioned;
that on the map or plan annexed to said complaint, the portions of
said map marked " B. C. C." were at same time and are held and
owned by persons other than the plaintiff; that a large portion
of said tract was and is owned and occupied by persons other than
the plaintiff, and that the lands of the plaintiff were at the time of
the making of said assessments exempt therefrom.
And for its second defense to the plaintiff's cause of action, the
defendant alleges that by an act of the legislature of the state of
New York, passed April 19, 1858, entitled "An Act to amend an act
entitled ' An Act to revise the charter of the city of Buffalo, and en-
large its boundaries,'" passed April 13, 1853, it is provided that any
person owning property in the city of Buffalo, upon which property,
together with the property of others, a tax or assessment may have
been made under the charter of the defendant, may pay a part of
any such tax or assessment upon any part of the property owned by
himself and others, and so taxed and assessed, and have an equi-
table proportion of such property released from such tax or assess-
ment; and the common council of the defendant are required, upon
application showing such right and payment, to release such just and
equitable proportion; and that the plaintiff has not paid or offered
to pay any such equitable part of the assessment set forth in said
complaint as the property alleged in said complaint to belong to the
plaintiff would bear to the whole of the tract fronting upon North
street, between Delaware and Bowery streets, mentioned in said
complaint.
And for its third defense to the plaintiff's complaint, the defend-
ant alleges that the several persons stated in said complaint to be the
owners of large portions of said tract of land mentioned in said
and impositions, which are laid directly especially assessed for the expense of
upon the property in a circumscribed it, are not public, but are local
locality, to effect some work of local private^ so far as this statute is c<
convenience, beneficial to the property cerned."
1033 Volume 5.
6784. DEAD BODIES AND CEMETERIES. 6784.
complaint are not the owners thereof, but are owners of only the
right of interment therein.
Wherefore, the defendant demands judgment, that the prayer of
the complaint be denied, and that it recover its costs in this action
from the plaintiff.
Dated Buffalo, April 20, iS69.
David F. Day,
Attorney for the Defendant.
( Verification. ) x
b. To Restrain Burial of Noneommunicant. 2
Form No. 6 7 8 4 . 3
State of Indiana, \ Tippecanoe Superior Court.
Tippecano e County, j February Term, 1884.
Joseph J. Dwenger and Edwin P. Walters, plaintiffs, )
against
John Geary, defendant. )
The plaintiffs above named complain of the defendants, and allege:
That Joseph J. Dwenger is the bishop of the Roman Catholic church
for the diocese of Fort Wayne, Indiana, and that Edwin P. Walters is
the pastor of the congregation of the Roman Catholic church known
as St. Mary's of Lafayette, Indiana, and that the ecclesiastical juris-
diction of the said Joseph J. Dwenger as such Roman Catholic bishop
embraces the said city of Lafayette, Indiana.
That in accordance with the principles and polity of the Roman
Catholic church the title and control of all church property are vested
in the bishop of the diocese in which such property is situated, and
that he holds it in trust for the congregations and societies of the
church, to be by them used and enjoyed according to its principles
and polity.
That the congregation of St. Mary's of Lafayette, Indiana, holds
and enjoys a cemetery, which, for about twenty-five years past, has
been held and occupied as a place of burial for the deceased members
of that congregation, under the control and authority of the bishop
of the diocese of Fort Wayne, Indiana, and that said cemetery has
been so used exclusively for the interment of those who at the time
of their death, were in regular standing in the church, according to
its principles, usages and doctrines.
That pursuant to those principles, usages and doctrines, a great
part of the said cemetery has been set apart and consecrated for the
burial of the dead according to the rites, usages and doctrines of
1. For the form of verification in a 107, in which case a judgment sustain-
particular jurisdiction consult the title ing a demurrer to the complaint was
VERIFICATIONS. reversed, the supreme court holding
2. For a case in which a bill will lie that the defendant had no right to in-
to restrain the burial of persons not ter the body of his dead son in a lot
members of a family in a family plot held under a license from the church,
see Lewis v. Walker, 165 Pa. St. 30. and that the plaintiffs had, at the time
3. This form is based on the facts in the suit was begun, a right to restrain
the first paragraph of plaintiff's com- him from so doing.
plaint in Dwenger v. Geary, 113 Ind.
1034 Volume 5.
6784. DEAD BODIES AND CEMETERIES. 8784.
the church, and that in such consecrated ground only members of
the Roman Catholic ckurch of good standing are allowed sepulture.
That part of said cemetery ground, although held by the congre-
gation of St. Mary s aforesaid, has not been specially consecrated,
but is open to use for the burial of persons not in good standing as
members of the Roman Catholic church.
That on the tenth day of February, i8<, one James Geary died by
his own hand and that his body is now awaiting burial.
That defendant John Geary, the father of the deceased James Geary,
owns a lot in the cemetery and claims a right to there inter the body
of his deceased son and will so inter it unless enjoined.
That said John Geary has no right to bury his son in the lot owned
by him as aforesaid, because the cemetery is distinctively consecrated
ground ? for the burial only of true and faithful Catholics, who die in
full communion with the church, and James Geary, at the time of his
death, was not a faithful Catholic, in good standing with the church;
for although he may have once been a Catholic, he had, by a wicked
and depraved life, and by a failure to observe the doctrines, prac-
tices, rules and regulations of the church, and by failing to contribute
to its support, and by failing to receive its sacraments, long before
lost and forfeited his membership and standing, and had, as he well
knew, absolved and released the church from all duty toward and
authority over him, and had forfeited his right to burial in ground
consecrated by the church.
That on or about the second day of February, i858, Peter Ball and
Owen Ball, communicants in good standing of St. Marys aforesaid,
conveyed the land on which the said cemetery is now located to John
H. Luers, the then bishop of the diocese of Fort Wayne, Indiana \ that
said deed of conveyance was in the words and figures following
(Jfere set out a copy of the deed}; that on said date the said John If .
Luers, bishop as aforesaid, took the said land in trust as a burying
ground for the Catholics of the city oi Lafayette, and immediately after
the conveyance of said land to the said John H. Luers, the congrega-
tion of St. Mary's, under the authority of the said bishop, and with
the co-operation of Peter and Owen Ball, caused the ground to be laid
off into lots and plotted, and caused to be set apart and consecrated
according to the ritual and principles of the Roman Catholic church
for the burial of the bodies of such persons as were entitled to sepul-
ture according to the rites and doctrines of the church, and the
privilege of burying in many of the lots was granted, for a considera-
tion, to members of the church and a certificate executed to them,
but the right so granted was subject to the rules of the church, and
among other requirements necessary to entitle one to interment, it
was required that he must have been at the time of his death a mem-
ber of the church in full communion, and must have performed all of
his church duties, and by the rules and doctrines of the church, a
person who committed suicide was not entitled to burial in conse-
crated ground, and it was the rule governing the cemetery of St.
Mary's, that, before any one could be interred in consecrated groi id,
a permit must be issued by the pastor of St. Marys congregation,
and that a permit was asked for by the said/M Geary for the burial
1035 Volume 5.
6785. DEAD BODIES AND CEMETERIES. 6785.
of his son in the lot situated in consecrated ground and was refused.
That the said James Geary at the time of his death was not living
in the family of his father, John Geary, but was living away from his
father's home.
That if the body of the said James Geary is buried in his father's
lot it will destroy the character of consecration with which the
ground is sacredly invested, and greatly tend to set at naught the
authority of the plaintiffs and the discipline of the church.
Wherefore, the plaintiffs pray that the said John Geary be en-
joined from interring the body of the said James Geary in the lot in
the cemetery of the congregation of St. Mary's, purchased by the
said John Geary, and for all other proper relief.
James F. McHugh, Attornev for Plaintiffs.
( Verification?)*-
e. To Recover Plot Answer Setting Up Dedication and Occupancy.
Form No. 6785."
Supreme Court, Rockland County.
Clarence R. Conger and Margaret Conger }
against
John Treadway. )
For answer to the complaint of the plaintiffs herein the defendant
alleges and shows to this court the following facts, to wit:
I. He denies each and every allegation of the complaint.
II. For a further defense and claim for affirmative relief he alleges
that the said parcel of land described in the complaint is, and has been
for many years last past, a burial plot in said Mount Repose Cemetery.
III. That the lands of which said lot was part were, about the
year i&5$, owned by one Asbury De Noyelles, who, on or about the
second day of May, 1 855, made and executed a deed conveying to
one John S. Gurnee and others, ten undivided eleventh parts of said lands
and retained one undivided eleventh part thereof, being so conveyed for
the purpose of a cemetery or burying place of the dead, for no other
purpose, and so expressed in the deed.
IV. That thereafter and about April, iS67, this defendant pur-
chased the plot described in the complaint from the aforesaid owners
of said cemetery lands, for the price of 72.50, and that soon after
making said purchase this defendant paid to the agents of said
owners the sum of 80.50 of said purchase price, and received
a receipt from said agent therefor, leaving a balance unpaid of
about 4%.
V. That as part of said agreement of purchase, a deed conveying
said plot to this defendant was to be executed and delivered soon
thereafter, and when such deed was executed and delivered to this
defendant the balance of said purchase money was to be paid by him.
1. For the form of verification in a ejectment to recover a plot of ground
particular jurisdiction consult the title known as lot No. 192 of Mount Repose
VERIFICATIONS. Cemetery in Haverstraw, New York.
2. This form is copied from the The answer was held to set up a good
records in the case of Conger v. Tread- defense.
way, 132 N. Y. 259. The action was
1036 Volume 5.
6786. DEAD BODIES AND CEMETERIES. 6786.
That after such purchase of said plot by this defendant, he entered
into immediate possession of same, and has ever since said purchase
continued in actual possession and buried therein his wife and two
children and five grandchildren, and improved the lot.
VI. That as this defendant is informed and believes, the plaintiff,
Clarence R. Conger, in an action for partition, wherein Susan D. Gard-
ner was a plaintiff and Cornelia G. Ayers and other defendants, to
which, however, this defendant was not a party, became the purchaser
of all the right, title and interest of the aforesaid owners of said
cemetery and of their respective heirs at law and devisees, in and to
the lands of said cemetery, of which defendant's plot was a part, but
subject to defendant's right as such purchaser and occupant of said
plot under and by a deed from Irving Brown, referee, bearing date
the nineteenth day of January, iS82, and that at and prior to the time
of purchase the said plaintiff, as defendant is informed and believes,
had information and notice of defendant's purchase of said plot and
occupancy thereof.
VII. That at all times since the purchase of said plot as aforesaid
by this defendant, he has been ready and willing to pay the balance
of said purchase money upon receiving a deed therefor, and that since
the said plaintiff, Clarence R. Conger, acquired the title of the afore-
said owners, their heirs and devisees, by said deed in partition, this
defendant has tendered to the said plaintiff the balance of said pur-
chase money, but that he refused and still refuses to receive the
same, or give a deed therefor, and that this defendant is now ready
and willing to perform his part of said contract of purchase, and pay
the balance of said purchase money, and offers now so to do.
Wherefore this defendant asks judgment that the plaintiffs be
decreed to perform the said contract of sale by receiving the balance
of said purchase money, and to execute and deliver to this defendant
a proper deed of said burial plot, with costs of action.
George IV. Weiant, Defendant's Attorney.
( Verification^-
(2) Against Cemeteries.
a. Petition for Mandamus to Compel Issuance of Burial Permit.
Form No. 6 7 8 6 .'
The Commonwealth of Pennsylvania, ex relatione^
William H. Boileau and Margaret Jones, \
against
The Mount Moriah Cemetery Association. }
Your petitioner respectfully represents:
I. That the defendant was incorporated under the laws of this
1. For the form of verification in a band of the relator Jones, and that the
particular jurisdiction consult the title refusal to issue a permit was arb
VERIFICATIONS. and unreasonable, and that mandamu!
2. This petition is substantially the lay to compel the company to issue the
same as that in Mount Moriah Ceme- permit. When Boileau purchase
tery Assoc. v. Com., 81 Pa. St. 235, in there being no restriction on his
which case it was held that the relator to burial, the company could not afte
Boileau had the right to bury the hus- ward abridge his rights.
1037 Volume 5.
6786. DEAD BODIES AND CEMETERIES. 6786.
commonwealth by act of assembly of March 27, 1855 (Pamph. L. of
1857, p. 729). That said act of incorporation was as follows: (Here
set out the act of incorporation^)
II. That on the sixteenth day of April, i87, the said Mount Moriah
Cemetery Association conveyed to the said William H. Boileau a lot in
said Mount Moriah Cemetery in the city of Philadelphia, known as
lot No. 4&> containing two hundred and forty square feet, and being
one-half of section 58, the said lot to be used for burial purposes.
That said lot was paid for by said William H. Boileau, and the deed
therefor duly registered. That appended to. said deed was a note
that all transfers of lots, to be valid, must be approved by the sec-
retary and registered (stating the method and place of approval and
registration).
III. That on said sixteenth day of April, i87, the said William H.
Boileau entered into a parol agreement to convey a portion of said
lot to Mrs. Margaret Jones, a colored woman and wife of the late
Henry Jones, deceased, which said Margaret Jones joins in this peti-
tijn. That the consideration for said agreement was the sum of
one hundred dollars, which amount at said date was by the said
Margaret Jones paid to the said William H. Boileau. That at or
about said date the said lot in question was inspected by the peti-
tioners, Boileau and Jones, in the presence of the superintendent and
secretary of said Mount Moriah Cemetery Association, who drew out
the plan of said lot and interposed no objection whatever to the
contemplated transfer of this lot to said Margaret Jones.
IV. That on the seventeenth day of April, i875, upon the order of
said William H. Boileau, and with the full knowledge and tacit con-
sent of said Mount Moriah Cemetery Association, through its author-
ized officers, the body of one Elizabeth Clark, a colored woman and
a sister of the said Margaret Jones, was interred in the said lot after due
public notice, given by advertisement in newspapers published in said
city, which expressly stated that the remains of the deceased woman
would be conveyed to Mount Moriah Cemetery from Bethel Church,
which place of worship was well known by the community to be
attended solely by colored people.
V. That on the tenth day of May, i87, the said William H.
Boileau, by deed in proper form and legally acknowledged, conveyed
to the said Margaret Jones the entire lot hereinbefore referred to, to
be used by her for burial purposes. That the consideration therefor
was one hundred and eighty dollars, which said sum was paid in full by
said Margaret Jones. That the deed in question was forthwith de-
livered to the said Margaret Jones, but without the formality of
approval by the secretary and registration.
VI. That said William H. Boileau omitted to obtain said approval
and registration of said deed before delivery thereof to said Mar-
garet Jones because to his knowledge the rule enjoining such ap-
proval and registration was in most cases virtually a dead letter, and
was never strictly enforced. That this knowledge was based on the
fact that said William H. Boileau had disposed to purchasers lots of
said corporation of the value of more than fifty thousand dollars,
and not one-half of the deeds to the lots so sold were ever approved
1038 Volume 5.
6786. DEAD BODIES AND CEMETERIES. 6786.
and registered, although in many instances interments of bodies
took place in the lots referred to in said conveyances with the knowl-
edge and full consent "of the corporation aforesaid.
VII. That the transfer of said lot to the said Margaret Jones was
made with the full knowledge of H. P. Council, who was the secre-
tary and superintendent of said Mount Moriah Cemetery Association
and entrusted with its general management. The previous interment
of a colored woman in the lot, that the said Margaret Jones was a col-
ored woman, and the prospective uses of said lot for the interment
of colored members of the family of the said Margaret Jones
were known to him, and not only was no objection interposed to
the said conveyance, either by the said Connell or \>y the said corpora-
tion, but at or about the time of said sale and conveyance to said
Margaret Jones the said Connell expressed to said Boileau a regret
that the corporation itself had not made the said transfer to the said
Margaret Jones direct, and a desire that the improving the lot for
the use of the said Margaret Jones should be entrusted to himself
and another official.
VIII. That after the date of the last mentioned conveyance the said
Margaret Jones and her late husband, Henry Jones ', commenced to
adorn and improve said burial lot, and contracted with one Daniel
Connell for the erection of an iron railing which should enclose the
lot attached to marble posts, each conspicuously marked "Henry
Jones" which work was completed in the summer of i875, and the
sum of one hundred and sixty dollars paid therefor, the said Daniel
Connells name having been suggested to the said Margaret Jones by
the officer in charge of said cemetery.
IX. That neither the said William H. Boileau or Margaret
Jones was notified of any opposition to the approval and registration
of the said deed to said Margaret Jones, nor of any objection to the
occupancy of the lot by the members of the family on account of
their color, until the twenty-seventh day of September, i875.
X. That on the twenty- fifth day of September, i875, the said Mar-
garet Jones sent a messenger to the officers in charge of said cemetery
acquainting them with the death of her husband, and of her desire
and intention to inter his remains in the said lot on the twenty-seventh
day of September, i875. That the officer in charge of the grounds
promised compliance with the request, and that a grave should be
dug in the lot in proper time to receive the case which was intended
to enclose the coffin of the deceased.
XI. That full arrangements were thereupon made for the funeral,
and advertisements were inserted in the public press, and a large
concourse of friends assembled at the house of the deceased on the
twenty-seventh day of September, i875, to participate in the religious
exercises and to attend the corpse to the grave.
XII. That about fifteen minutes prior to the time advertised for
the funeral a note, of which the following is a copy, was left at the
dwelling of the said Margaret Jones : " Madam : I am in receipt of
a note from you, requesting a grave to be dug in lot No.^in Mount
Moriah Cemetery. I am unable to comply with your request, because
the lot in question is registered as belonging to William H. Boileau,
1039 Volume 5.
6786. DEAD BODIES AND CEMETERIES. 6786.
and the rules of the company require me to act only under the orders
of the registered owner. Very respectfully,
H. P. Connell, Superintendent."
XIII. That said note was immediately sent to said William H.
Boileau, who forthwith indorsed thereon as follows, to wit:
"Philadelphia, Sept. 27th, iS7S.
" Dear Sir: Please to let the bearer bury in the lot.
W. H. Boileau. "
That the note so indorsed was at once conveyed to the cemetery,
and with the two deeds was handed to the officer in charge, who
acknowledged the validity of the order but asserted that, objection
having been made by some of the lot holders to the interment of
colored people in the cemetery, he was instructed by the managers
not to allow the bodies of colored people to be brought within the
grounds, and refused to allow the body of the deceased to be tempo-
rarily placed in the receiving vault until said Margaret Jones could
make other arrangements for its interment.
XIV. That unaware of this prohibition, upon conclusion of the
religious exercises at the late home of the deceased, the funeral pro-
cession traversed its route to the cemetery, but was checked in its
passage by parties purporting to be sent by the superintendent for
the purpose of notifying them of the prohibition.
XV. That the said Margaret Jones was thereupon compelled to
convey the remains of her late husband to the receiving vault of
Lebanon Cemetery in the said city of Philadelphia, where it still remains
unburied.
XVI. That upon the twenty-ninth day of September, i875, the said
William H. Boileau and the said Margaret Jones made a demand upon
James Smyth, the president of the said Mount Moriah Cemetery Asso-
ciation, and upon the said H. P. Connell, secretary thereof, forthwith
to approve and register the deed to the said Margaret Jones of the
lot in question from the said William H. Boileau, or should that
demand be refused, that they acknowledge and execute the order of
Boileau for interment, and give permission to said Margaret Jones to
bury her late husband in said lot. That to this demand the presi-
dent has made no reply; but that the secretary and superintendent
has answered with a peremptory refusal upon the part of the said
corporation to approve or register the deed to the said Margaret Jones
or to honor the order for interment.
XVII. Your petitioners therefore pray this honorable court to
issue a writ of mandamus directed to the Mount Moriah Cemetery Asso-
ciation, and to each of its officers, to accept and carry into execution
the order of the said William H. Boileau, and at once permit the
body of Henry Jones to be interred in lot No. 48 in said Mount Moriah
Cemetery.
And your petitioners will ever pray, etc.
William H. Boileau.
Margaret Jones.
City and County of Philadelphia, ss.
William H. Boileau, being duly sworn according to law, deposes
1040 Volume 5.
6787. DEAD BODIES AND CEMETERIES. 6787.
and says that the facts set forth in the above petition are just and
true to the best of his- knowledge and belief.
William H. Boileau.
Sworn to and subscribed before me this twenty-eighth day of Febru-
ary, i876.
Norton Porter, Notary Public.
b. Bill for Permission to Remove Body.
Form No. 6787.'
Commonwealth of Massachusetts.
Supreme Judicial Court.
Suffolk, ss. In Equity.
Between "j
Nathaniel Weld
and I Bill of Complaint.
Gideon Walker, George Ivers and
Forest Hills Cemetery Corporation. J
To the Honorable the Justices of the Supreme Judicial Court in and
for the County of Suffolk in the Commonwealth of Massachusetts,
sitting in equity:
Respectfully represents Nathaniel Weld of Boston in the county of
Suffolk, aforesaid, that Gideon Walker, of said Boston, and George
Ivers, of Evans' Mills in the county of Jefferson in the state of New
York, were, on the twenty-ninth day of August, i875, the owners of a
certain burial right or lot numbered 244%, in the cemetery known
and called the Forest Hills Cemetery, in the said city of Boston, which
said cemetery is owned, occupied, carried on, taken care of and con-
trolled by the Forest Hills Cemetery, a corporation duly established
by law, and having its usual place of business in said Boston, and the
said corporation claim and exercise the control over the interment
and removal of bodies, and over persons going into said cemetery and
while they are within the same.
Your petitioner further shows, that his wife, Mary P. Weld, died
at said Boston, on the twenty-seventh day of August, i875, and was
buried in said Forest Hills Cemetery in said lot No. 2442, then and now
owned by said Walker and Ivers; and your petitioner has no legal
right or title therein; that the said Mary P. Weld was the sister of
Isabella Walker and Eunice W. Ivers, the wives of said Walker and
Ivers, and that upon the decease of said Mary P., the said Isabella
and Eunice W., together with the said Walker, immediately com-
menced importuning your petitioner to have his wife, the said Mary
1. This form is copied from the record tendon or understanding that it should
in the case of Weld v. Walker, 130 Mass, be her final resting-place, a court of
422. In this case a decree was entered equity may permit him, after such
in conformity with the prayer of the burial, to remove her body, coffin and
bill, from which the defendant Walker tombstones to his own land, and re-
appealed, but the decree was affirmed strain that person from interfering with
on appeal, the court holding that if a such removal.
husband has not freely consented to For the present form of a bill inequity
the burial of his wife in a lot of land in Afassacnusetts see vol. 3, Form No.
owned by another person, with the in- 4273.
5 E. of F. P. 66. 1041 Volume 5.
6787. DEAD BODIES AND CEMETERIES, 6787.
P., buried in their said lot, and that your petitioner, being then in
great distress of mind, and being worn out in taking care of his said
wife in her sickness, yielded to their continued importunities, much
against his wishes and feelings, fearing that they would make trouble
for him if he did not consent; and he finally consented that she
might be buried in the said lot, which he should not have done had
his mind been in condition to realize the situation; and that he pro-
cured a casket and clothes for her burial, and the body was clothed
in the said clothes and put into the said casket of your petitioner,
and so buried in the said lot on the twenty-ninth day of August, iS75,
and has there remained from thence to the bringing of this peti-
tion; and your petitioner says that he has no right or authority to take
care of her said grave, to erect grave-stones or monuments thereon
or to beautify or adorn the same or the said grave lot, or to bury
other of his or her friends or family by her side, or to be buried by
her side himself; all of which he feels that he may desire to do.
And your petitioner further says, that he is a joint owner in a burial
lot in the Mount Hope Cemetery, a cemetery in said city of Boston, the
said lot belonging to the heirs of E. Weld, of whom he is one, in
which his father and mother are buried and in which he has the right
to bury and to set up grave-stones and monuments and to beautify the
said lot and the grave, and to be buried therein himself at his decease;
and that he desires to remove the casket containing the remains of
his said wife, together with said remains and said clothes for her burial,
and any stones or monuments that he has placed at her grave, from
th'e said lot in said Forest Hills Cemetery, belonging to said Walker
and Ivers, to his said lot in Mount Hope Cemetery, in which no near
relative of said Mary P. is now buried ; that the said remains may be
buried with his relatives and in his said burial-place, and where, at
his decease, he may be buried at her side; and that he has obtained a
permit in due form of law from the proper authorities, to wit, the
board of health of the city of Boston, to so remove the said casket
and clothes for her burial and the remains from said lot in said
Forest Hills Cemetery, and to bury the same in his said lot in said
Mount Hope Cemetery; and your petitioner says that in law and in
equity and good conscience, he had and has the right to so remove
the same and bury them in said Mount Hope Cemetery.
And your petitioner further says that he applied in a friendly and
proper manner to the said Gideon Walker and said George Ivers, and
requested permission, in a careful and proper manner, doing no un-
necessary damage to the said lot, to take up the said casket and
clothes and the remains of his said wife, and the said stones and
monuments, and remove the same to his said lot in Mount Hope Ceme-
tery, leaving the said lot in good and proper condition; and they
declined to grant to him the said permission, and did refuse to permit
him to remove the same, and refuse to let him or any one for him
enter upon said lot; and the said defendant, Gideon Walker, as your
petitioner is informed and believes, gave to one Abner Moulton, who
was and is the superintendent and agent of said Forest Hills Cemetery
Corporation and cemetery, a notice or order in writing in words and
figures as follows, to wit:
1042 Volume $
6787. DEAD BODIES AND CEMETERIES. 6787.
"To Abner Moulton, Esq.,
Superintendent of Forest Hills Cemetery.
You are forbidden to allow the removal of the remains of Mary P.
Weld, buried in the cemetery lot 2442, nor to permit any trespass in
said lot nor entry in same, as the above lot belongs to me.
Boston, October 27, i877. Gideon Walker."
And your petitioner further says that he requested permission to
remove the said casket, clothes, remains, stones and monuments of and
from the said Forest Hills Cemetery Corporation, and said corporation
refused to grant said permission, alleging that it had no authority to
grant the same and forbid him his removing the same and from going
into said cemetery for that purpose; and he further says, that said
defendants Walker and Ivers and said Forest Hills Cemetery Corpora-
tion threaten him with suits at law and criminal prosecutions if he
shall remove or attempt to remove said casket, clothes, stones or
monuments and remains of said Mary P. Weld, his said wife, from
said lot, whereby he is unable to remove the same.
All of which actings and doing of said defendants are contrary to
equity and good conscience, and tend to the manifest wrong, injury
and oppression of your petitioner in the premises; and forasmuch
as your petitioner is remediless in the premises at and by the
strict rules of the common law, and is relievable only in a court of
equity, where matters of this nature are properly cognizable and
relievable;
To the end therefore, that the said defendants and each of them
may, to the best of their and each of their knowledge, remembrance,
information and belief, full, true, direct and perfect answers and
answer make to all and singular the matters aforesaid, but not upon
their or either of their corporal oath or oaths, which is hereby waived,
and further, that your petitioner may, by the decree and direction of
this court, be permitted to remove the remains of said Mary P. Weld
and said casket, clothes, stones and monuments from said lot in said
Forest Hills Cemetery to said petitioner's lot in said Mount Hope Ceme-
tery in such manner as this court shall direct; and that said defend-
ants and each of them and their and each of their agents, attorneys
and servants, may be restrained, by an injunction issuing out of this
court, from hindering, opposing, objecting to or preventing your peti-
tioner from removing the said casket, clothes, stones, monuments
and remains from said lot in said Forest Hills Cemetery to said lot in
said Mount Hope Cemetery, and also from in any way interfering to
prevent the same; and for such other and further relief in the prem-
ises as the nature and circumstances of this case may require and to
your honors shall seem meet:
May it please your honors to grant unto your petitioner, not only
a writ of injunction issuing out and under the seal of this court, to
be directed to said defendants and each of them, and to their and
each of their agents and servants, restraining them and each of them
from objecting to, opposing or hindering or in any way interfering
with your petitioner in removing the said casket, clothes, remains,
stones and monuments in said Forest Hills Cemetery \.Q said lot in said
Mount Hope Cemetery; but also a writ of subpoena to be directed to
1043 Vo|ume 5.
6788.
DEAD BODIES AND CEMETERIES.
6788.
the said Gideon Walker, George Ivers and the said Forest Hills Ceme-
tery Corporation, defendants, thereby commanding them and each of
them, at a certain time and under a certain penalty therein to be
limited, to appear before this court, and then and full, direct and per-
fect answers make to all and singular the premises; and further, to
stand to, perform and abide such further orders, directions and
decrees therein as to this court shall seem meet.
Nath'l Weld.
Burbank 6 Lund,
Plaintiff's Solicitors.
In the Court of Common Pleas,
No. 1, for the City and County
of Philadelphia, of June
Term, i85. No. 3. Sitting
in Chancery.
c. Bill for Injunction to Prevent Removal of Body.
Form No. 6788.'
The First Presbyterian Church in the
Northern Liberties, Mary Ann Wil-
son, Benjamin Benner, Margaret
Benner, William S. Magee, James
H. Magee and James White, plain-
tiffs,
against
The Second Presbyterian Church in the
City of Philadelphia, Edward K.
Tryon and Pearson Yard, defend-
ants.
To the Honorable the Judges of the said Court.
Your orators complain and say: I. That the Second Presbyterian
Church in the City of Philadelphia, in April A.. D. \W5, established a
branch church in the Northern Liberties, and that both churches were
under the same pastor, the same trustees, and the members of each
church were regarded as members of the same body corporate.
II. That at the time the said branch church was established the
Second Presbyterian Church purchased a lot of ground on Noble and
Buttonwood streets between Fifth and Sixth streets, in the city of
Philadelphia, in the state of Pennsylvania, as a burial ground for the
use of both churches.
III. That by an ordinance of said church corporation, adopted the
ninth day of September, A. D. \W5, every member of either congre-
gation having a family and being desirous of having graves con-
tiguous to each other should have the privilege of having sufficient
ground reserved when the first interment took place on payment of
two dollars for each space for a grave reserved, not exceeding three
spaces in the whole, and that each holder of a pew in such branch
church thereby became entitled to the right of burial in said ground.
1. This bill is in substance that used
in First Presbyterian Church v. Second
Presbyterian Church, 2 Brews. (Pa.)
372, in which case the removal of the re-
mains was enjoined, although the bill
was dismissed as to the First Presby-
terian Church on the ground that it had
no interest in the burial ground, hav-
ing disposed of such interest prior to
the bill; and as to the complainant
Mary Ann Wilson, she having signified
her desire to withdraw from the suit as
complainant.
1044
Volume 5.
6789. DEAD BODIES AND CEMETERIES. 6789.
IV. That interments of deceased members of said branch church
were made in said ground, and additional spaces for graves were
reserved for their families in pursuance of said ordinance.
V. That in the year i8.A? an agreement was made for the separa-
tion of the said branch church from the Second Presbyterian Church in
the City of Philadelphia, which was sanctioned by the presbytery, and
the said branch church was duly incorporated the sixth day of Jan-
uary, i8L, under the name of " The First Presbyterian Church in the
Northern Liberties."
VI. That by the agreement for the separation, it was provided that
the right of burial in the above mentioned burying ground should
continue in the members of both churches, the same as before the
separation, which right was subsequently, in the year i&19, restricted
to certain families in the congregation, and has been continually
enjoyed since the separation, and a burial was made in said burial
ground as late as A. D. i856.
VII. That in the year iS19, the First Presbyterian Church in the
Northern Liberties sold to the Second Presbyterian Church in the City of
Philadelphia the right of said First Presbyterian Church in said burial
ground, making reservations for such families as should desire to
continue their right of burial in said ground.
VIII. That the individual plaintiffs in this bill have ancestors
interred in said ground, and being members of families for whom
the reservation of burial rights in said ground was made, and also
being members of the First Presbyterian Church in the Northern
Liberties aforesaid, are entitled to retain and enjoy said rights.
IX. That the said Second Presbyterian Church has sold said burial
ground to the defendant Edward K. Tryon, and to put said ground in
a suitable condition to perfect the sale, the trustees of said church
have caused a notice to be published by their agent, Pearson Yard, of
their intention to remove the bodies interred in said ground, in vio-
lation of the rights of the plaintiffs in the premises.
Wherefore your orators pray:
I. That said defendants be restrained by the injunction of this
honorable court from removing the remains of the dead from said
cemetery, as aforesaid.
II. General relief.
John L. Shoemaker,
Solicitor for Complainants.
d. Bill to Compel Restoration of Body to Lot. 1
Form No. 6789.*
1. In an action to restrain defendant the damages they have themselves sus-
from desecrating a burial lot reserved tained. Mitchell v. Thome. 134 N. Y.
in a deed from plaintiff's ancestor and 536, affirming 47 N. Y. St. Rep. 896.
for damages, the complaint need not 2. this form is based on the facts in
aver that such ancestor died intestate, the case of Pierce v. Swan Point Ceme-
nor is it necessary that the complaint tery, 10 R. I. 227. In that case a de-
show that all persons having an interest murrer was filed on behalf of Almira T.
therein are made parties to the ac- Metcalf, for want of equity and an an-
tion, as the plaintiffs can only recover swer interposed on behalf of the Pro-
1045 Volume 5.
6789. DEAD BODIES AND CEMETERIES. 6789.
D j c Supreme Court,
Providence, be. A .. , 7 . T-V
Appellate Division.
William G. Pierce and Almira F. Pierce,
his wife, plaintiffs,
vs.
Proprietors of Swan Point Cemetery and
Almira T. Metcalf, defendants.
Bill in Equity.
William G. Pierce and Almira F. Pierce, his wife, of the city of Provi-
dence, in the said county of Providence, bring this bill of complaint
against Proprietors of Swan Point Cemetery and Almira T. Metcalf, of
the same place, and thereupon complaining say,
I. That defendant, Proprietors of Swan Point Cemetery, is a corpo-
ration duly created under the laws of this state.
II. That on the fourth day of May, i85, one Whiting Metcalf died
leaving the complainant Almira F. Pierce his sole heir at law, and
the said Almira T. Metcalf, his widow, him surviving.
III. That during his lifetime the said Whiting Metcalf had con-
veyed to him, and became the owner of a certain burial lot in the
First Congregational Society's Burial Ground in Swan Point Cemetery;
that he was a Unitarian in religious belief, a communicant of that
denomination, and a prominent member of the so called and well
known "First Congregational Society of the City of Providence" and that
the burial lot so purchased by him was one of a family group of lots,
of which group the several lots were held and owned by the brothers
and kindred of said Whiting Metcalf.
IV. That upon the decease of the said Whiting Metcalf he was
buried in said lot, and as the plaintiffs allege upon information and
belief, in accordance with his wishes and desires expressed during
his lifetime and with the approbation of his widow, the said Almira
T. Metcalf; and his remains remained for about thirteen years in said
place of burial.
V. That the said lot in the Swan Point Cemetery became the absolute
property, by descent, of the complainant, Almira F. Pierce, upon the
death of the said Whiting Metcalf, she being his only child, heir at
law and next of kin.
VI. That on or about the twenty-second day of July, 1 869, the defend-
ant, Almira T. Metcalf, requested in writing the permission of the
gentlemen having charge of the Unitarian Cemetery for the removal
of his remains, and set forth as her reasons therefor the fact that
prietors of Swan Point Cemetery, in enter up between the other parties to
which they denied the jurisdiction of the bill. The court held that while con-
the court to direct or control the man- sent of the defendant corporation could
agement of their internal affairs, or in not give jurisdiction to the court, yet
the subject matter of the bill, so far as that said corporation was in fact a
relief was prayed against them, but trustee for certain purposes, and that
stated that they believed all the facts when the trust was not properly exe-
stated and charged in the bill to be cuted the court had the same jurisdic-
true, and submitted to execute, or to tion to compel its execution as in the
allow to be executed within their case of any other trust. The demurrer
grounds, such order and decree in the of Mrs. Metcalf was overruled,
premises as the court might see fit to
1046 Volume 5.
6789. DEAD BODIES AND CEMETERIES. 6789.
she had secured a lot in Swan Point Cemetery, and wished to remove
to it the remains of her late husband, and there erect a suitable monu-
ment to his memory. '
VII. That such consent was refused by the authorities of said cem-
etery unless accompanied by "the written request of the relatives
countersigned by the society's committee"; and that afterwards the
complainants protested to the actuary of the defendant corporation
against such removal, positively forbidding the same; and that the
filing of said protest was. known to the respondent, Almira T. Met-
calf, before the removal, as the complainants are informed and
believe.
VIII. That on or about the first day of August, iS69, the
remains of the said Whiting Metcalf were forcibly, without the
authority, consent or approval of the complainants, in violation of
the by-laws of the defendant corporation, in violation of law, of right,
and of the sacredness of the tomb, removed, under the direction of
the said Almira T. Metcalf, from the lot aforesaid and placed in
another lot in said cemetery.
IX. That after said body had been removed, and while it was
exposed, the superintendent of said cemetery did not direct its imme-
diate reinterment in the grave whence it was taken, but permitted
its interment in the lot to which it had been removed.
X. That on the ninth day of August, i869, the complainants
requested the directors of the defendant corporation to restore said
remains to the place whence the same had been taken, and the defend-
ant corporation neglected and refused to comply with such request,
but afterwards passed a vote declaring that what had been done was
in violation of their by-laws.
XI. That on the twenty-first day of February, iS70, the complain-
ants notified the defendant, Almira T. Metcalf, of their protest here-
inbefore referred to, requesting and desiring her to restore said
remains to the place from whence they were taken, and said request
was refused.
XII. That all of said acts on the part of the said Almira T. Metcalf
and the directors of the Swan Point Cemetery, were in direct, absolute
and palpable violation of the rights of the complainants herein.
In consideration whereof and forasmuch as the complainants can
have no adequate remedy at and by the strict rules of the common
law, and is relievable only in a court of equity where matters of this
nature are properly cognizable and relievable.
To the end, therefore, that the Proprietors of the Swan Point Ceme-
tery and Almira T. Metcalf may to the best and utmost of their
respective knowledge, remembrance, information and belief, full,
true, direct and perfect answer make to all and singular the matters
aforesaid but not upon oath, the benefit of which is hereby expressly
waived, and that as full and particularly as if the same were here
repeated and they and each of them distinctly interrogated thereto,
and that the defendant corporation, the Proprietors of Swan Point
Cemetery, be directed and ordered to restore and replace the remains
of the said Whiting Metcalf in the lot from whence they were taken,
and that the said Almira T. Metcalf be enjoined from interfering
1047 Volume 5.
6790. DEAD BODIES AND CEMETERIES. 6790.
with or in any manner preventing, or attempting to prevent, said
restoration and replacement, and be also perpetually enjoined from
again removing or intermeddling with said remains.
May it please your honors to grant unto the complainants a writ
of subpoena directed to the Proprietors of Swan Point Cemetery and
Almira T. Metcalf, aforesaid, thereby commanding them and each of
them at a certain time and under a certain penalty, therein to be lim-
ited, 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 and perform and abide such
further order, direction and decree therein as to this honorable court
shall seem agreeable to equity and to good conscience.
William G. Pierce.
James Jones, of Counsel for Complainants.
( Verification. ) x
e. Actions for Damages. 1
(1) FOR BURYING STRANGER IN PLAINTIFF'S PLOT.
Form No. 6790. 3
Commonwealth of Massachusetts.
Suffolk, ss. Superior Court, July Term, i855.
Donnelly )
against
Catholic Cemetery Association. )
Plaintiff's declaration.
First count. And the plaintiff says that he is the owner and pro-
prietor of a certain burial lot and grave in a cemetery in said Boston,
which said cemetery is established, occupied and under the manage-
ment and control of the defendant as a body corporate of this com-
monwealth, subject to the exclusive right of the plaintiff to bury in
said grave certain persons on their decease. That on or about the
eighth day of March, A. D. iS83, the said association, by its servants
and agents, with force and arms, unlawfully broke and entered the
plaintiff's said lot and grave, the said lot being numbered twenty, range
one hundred and nineteen, section four, and dug up the soil of the same
and disturbed and removed the dead bodies of the plaintiff's father
and child at that time and for a long time before buried there, and
did put and bury in said grave the dead body and coffin of a certain
other person without the consent or knowledge of the plaintiff and
without authority or justification. And the plaintiff says that said
1. As to the verification of a bill in fendani, but reported the case for the
Rhode Island see vol. 3, p. 458, note 4. determination of the full court: if his
2. For the formal parts of a com- ruling was correct, judgment to be en-
plaint, petition or declaration in a par- tered on the verdict; if incorrect, judg-
ticular jurisdiction consult the title ment to be entered for the plaintiff, by
COMPLAINTS, vol. 4, p. 1019; DECLA- agreement of parties, in the sum of two
RATIONS. hundred and fifty dollars. Judgment
3. This form is copied from the rec- was given for the plaintiff, the court
ord in the case of Donnelly v. Boston holding that the cemetery corporation
Catholic Cemetery Assoc., 146 Mass, was liable to the proprietor of a grave
163, in which case the superior court for the negligent burial of a stranger
justice ordered a verdict for the de- therein. .
1048 Volume 5.
6791. DEAD BODIES AND CEMETERIES. 6791.
dead body of said other person was unlawfully kept by said defend-
ant in said grave from the time of said burial of the same until on or
about the eighth day of March, iS84, when the plaintiff went to said
cemetery to bury and to attend to the burial of the body of his wife
in said grave, that he was accompanied thereto by the friends and
relatives of his said wife and himself; that because x>f the burial of
said certain other person in plaintiff's said grave, the plaintiff, to
whom such burial was at that time unknown, was greatly hurt and
wounded in his feelings; the burial of the body of plaintiff's wife
delayed for a long space of time, to wit, for one hour, and the plaintiff
put to great mental distress and suffering thereof.
Second count. And the plaintiff says, that on or about the eighth
day of March, iSSS, and ever since that day, he being the owner and
proprietor of a burial lot and grave as aforesaid, in said cemetery as
aforesaid, and he having the exclusive right to bury the bodies of
deceased persons in said grave or lot as aforesaid, subject to certain
conditions as aforesaid; the said defendant, by its agents and serv-
ants, wilfully, negligently and carelessly did enter in and upon said
lot and grave and did so dig up and open said grave, and did negli-
gently, carelessly and without authority or right put and bury in said
grave, in which the bodies of the plaintiff's deceased father and
child had been and still were buried for a long time, the dead body
of a strange person, and have so put and buried said dead body un-
lawfully, negligently and carelessly kept and continued said body
buried therein until on or about the eighth day of March, iS84, at
which time the plaintiff, not knowing of said unlawful and negligent
acts and burial as aforesaid and having lost his wife and having pro-
ceeded with her dead body in company with certain friends and rela-
tives of himself and his said wife to said cemetery and said lot for
the purpose of her burial therein, and of having the usual funeral
services, the plaintiff then became informed of said burial of said
strange body in his said grave and of the acts aforesaid of the de-
fendant, its agents and servants, and because of said burial and find-
ing of said strange body in said grave, and because of a dispute in
consequence as to the ownership of the plaintiff's grave, then dug
and ready to receive the body of his said wife, and the performance
of said funeral services were greatly delayed, to wit, for the space of
one hour, and the plaintiff put to great shame, distress and mental
suffering, and all in consequence of the unlawful and negligent acts
of the defendant's agents and servants.
By his Attorney, /. L. Eldredge.
(2) FOR INJURIES CAUSED BY POISON IVY.
Form No. 6791.'
Supreme Court, Kings County.
Barbara E. George, plaintiff, )
against > Complaint
Cypress Hills Cemetery, defendant. )
The plaintiff above named complaining of the defendant alleges
1. This form is copied from the records in George v. Cemetery Co.. 2nd Depart-
ment, Appellate Division, N. Y. The case has not as yet been r<
1049 Volume 5.
6792. DEAD BODIES AND CEMETERIES. 6792.
I. Upon information and belief the defendant is a corporation duly
organized under the laws of the state of New York for the purpose
of interring the dead at a cemetery known as " Cypress Hills Ceme-
tery" situated partly in the counties of Kings and Queens in the state
of New York.
II. That the plaintiff is the owner of a certain grave, plot or lot
known as No. 68J7 in the portion of said cemetery known as Locust
Grove, and the said lot being under the charge, care and control of
said defendant.
III. That on or about the thirtieth day of June, i85, said plaintiff
while lawfully visiting said grave or plot in said cemetery and with-
out any fault or negligence on her part, was poisoned by a certain
shrub or plant commonly known as "poison ivy" which the defendant
had carelessly and negligently allowed to grow about said grave or
plot, and in consequence of such poisoning the plaintiff became
sick, sore and disordered, and suffered severe bodily pain and anguish
and still suffers great pain and anguish, and will continue so to do,
and was prevented from attending to her business and was compelled
to procure medical attendance and medicine, all to her damage ten
thousand dollars.
John A. Anderson, Attorney for Plaintiff,
803 Washington St., Brooklyn, N. Y.
(3) FOR REMOVAL OF BODY FROM PLOT. 1
Form No. 6792.*
Suffolk, ss. Superior Court, July Term, i807.
Thomas F. Meagher
vs.
James Driscoll.
And the plaintiff says that the defendant with force and arms took
and carried away the goods belonging to the plaintiff, viz., one coffin,
and the body of the plaintiff's child contained therein, and converted
the same to the use of the defendant, against the peace of the com-
monwealth and to the damage of the plaintiff, as he alleges, in the
sum of three thousand dollars.
And the plaintiff says he was owner by certificate of a certain
lot, being lot numbered four in Holyhood Cemetery, situate in the
county of Norfolk, and of a right of burial in said lot in said ceme-
tery, and that on or about the sixth day of December, 1868, he pur-
chased a coffin and placed therein the body of his child who had died,
and he had said coffin placed in said lot numbered/iwr, and his child's
1. See also Bessemer Land, etc., Co. overruled by the supreme court. It
v. Jenkins, in Ala. 135; Smith v. was held further that in measuring
Thompson, 55 Md. 5. damages the jury may take into con-
2. This form is copied from the sideration the injury of the plaintiff's
record in Meagher v. Driscoll, 99 Mass, feelings, if it appears that the defend-
281, in which case the jury returned a ant acted in wilful disregard or careless
verdict for the plaintiff, to which de- ignorance of the plaintiff's rights,
fendant alleged exceptions, which were
1050 Volume 5.
6792. DEAD BODIES AND CEMETERIES. 6792.
body interred therein, and that the defendant, on or about the tu-enty-
third fay of September^ i865, wrongfully, unlawfully and maliciously,
and without the knowledge or permission of the plaintiff, entered
upon said lot and dug up the same, and removed the body of the
plaintiff's child and the coffin containing the same^and placed the
same in a charity grave, and placed in the said lot in which the plain-
tiff then had the right of burial the body of a stranger.
2. The plaintiff says that he is and was entitled to a right of burial
in lot numbered four in Holyhood Cemetery, situate in the county of
Norfolk, and that he had placed in said lot a coffin containing the
body of his child, deceased; that the defendant, while he, the plaintiff,
was in possession of said right of burial, entered upon said lot with-
out authority, and with wicked intent, and disturbed him in said right
of burial, and wickedly and wrongfully dug up and carried away his
said child, and maliciously and deceitfully tried to conceal from the
plaintiff that his said child had been removed from said burial lot and
that the defendant placed the plaintiff's child in a charity grave,
and wickedly tried to conceal from the plaintiff that he had so done,
and the plaintiff was kept in ignorance of the disturbance of his
possession of said burial lot and of the removal of his child from the
same for a long time, to the great injury of the plaintiff's feelings, as
he says.
3. The plaintiff further says that he owned a coffin, and that on or
about the sixth day of December, i&63, he put the body of his child,
deceased, in said coffin and buried it in his own lot, being lot num-
bered four in the Holyhood Cemetery, situate in the county of Norfolk,
and that the defendant, on or about ti\z twenty-third fay of September,
i8&J, did unlawfully, wrongfully, and with malicious intent, and with-
out the knowledge or consent of the plaintiff, dig up and remove the
coffin, the property of the plaintiff, containing the body of the plain-
tiff's child, to the great damage and injury of the plaintiff's feelings,
as he says.
4. And the plaintiff further says that the defendant has put the
body of a stranger into his, the plaintiff's burial lot, to the great
damage and injury of the plaintiff, as he says.
5. And the plaintiff further says that the defendant, on or about
the twenty-third day of September, 1 865, with force and arms broke
and entered the plaintiff's close, viz., a burial lot numbered four,
situate in Holyhood Cemetery, in the county of Norfolk, and with h
feet in walking trod down, trampled upon, consumed and spoiled
grass and herbage of the plaintiff then and there growing and being
of great value, and with the implements for digging, dug up the eart
and heaped the earth upon the grass and herbage then and
growing, and being of great value, to the great injury of
and other wrongs to the plaintiff then and there did against the peace
and to the great damage of the plaintiff, as he says.
R. D. Smith,
W. Emery,
Attorneys for Plaintiff.
Volume 5.
6793. DEAD BODIES AND CEMETERIES. 6793.
f. By Holders of Cemetery Bonds to Compel Accounting.
Form No. 6793 , l
Supreme Court, Broome County, New York.
Martha E. Seymour
against
The Spring Forest Cemetery Association,
Erasmus D. Robinson, Tracy R. Morgan,
Job N. Congdon, Benjamin Devoe,
Edward B. Stephens, Alonzo C. Matthews,
Harris G. Rodger s, Robert Brown, Cyrus
Strong.
The above named plaintiff, complaining of the above named
defendants, says:
That the defendant, The Spring Forest Cemetery Association, is a cor-
poration duly organized under the laws of the state of New York;
that as such corporation it duly, and to pay for lands purchased by
it, issued bonds or certificates of indebtedness in the aggregate
amount of twenty-one thousand dollars, as follows: One bond (without
having any number), bearing date March 13, i%55, in the penal sum
of six thousand dollars, conditioned for the payment of three thousand
dollars, with interest, to Tracy R. Morgan, or to his attorney, execu-
tor, administrator or assigns; that the full text of said bond is as fol-
lows: {Here was set out a copy of bond and a list of bonds numbered from
2 to %8 inclusive, payable and conditioned in the same manner.') Plaintiff
further says that no other bonds were issued by said The Spring
Forest Cemetery Association.
Plaintiff further says that she is the owner and holder of all said
bonds, and entitled to all the moneys and rights secured by said
bonds.
Plaintiff further says that since the first day of July, i87, no
account has been rendered to the holders of said bonds of the income
and receipts of the said The Spring Forest Cemetery Association, appli-
cable to the payment of said bonds, and no account has been ren-
dered to the holders of said bonds since \hzfirst day oijuly, i87,
of the receipts of the said The Spring Forest Cemetery Association, so
that the amount properly applicable to said bonds can be obtained;
and that demand has often been made of said The Spring Forest Ceme-
tery Association, and of its officers, in behalf of the owners and hold-
ers of said bonds, for an account of the said receipts, and such
demands have all been refused.
Plaintiff further says that the defendants, Erasmus D. Robinson,
Tracy R. Morgan, Job N. Congdon, Benjamin Devoe, Edward B.
Stephens, Alonzo C. Matthews, Harris G. Rodger s, Robert Brown and
Cyrus Strong, claim to be and are acting as trustees of the said The
Spring Forest Cemetery Association; that they have the custody of all
the money and property of the said The Spring Forest Cemetery Asso-
ciation; that the number of the trustees of the said association, as
1. This complaint is copied from the records in the case of Seymour v. Spring
Forest Cemetery Assoc., 144 N. Y. 333.
1052 Volume 5.
6794. DEAD BODIES AND CEMETERIES. 6794.
provided by law, is nine; that only a very small portion of the moneys
received by the said 'The Spring Forest Cemetery Association has been
paid on said bonds since the first day of July, i87; that a large
amount of money, but what amount plaintiff is unable to state,
further than that it is between /#<? thousand and twenty-five thousand
dollars, at the time this complaint is made, has been received by
the defendants, which is applicable and should be applied to said
bonds; that said defendants neglect and refuse to make any account
whatever, refuse to recognize the validity of said bonds, and refuse
to make any payment on said bonds, although such account and pay-
ment have often been demanded by the holders and owners of said
bonds.
Wherefore plaintiff demands judgment in her favor for an account-
ing by the defendants of all the receipts of said The Spring Forest
Cemetery Association since the first day of July, i87, that the amount
applicable to said bonds may be ascertained, deducting all payments
made on said bonds since the first day of July, :87<f?, and that plain-
tiff be paid the net amount applicable on said bonds, with interest
on the sums withheld from the time the payments withheld should
have been applied; and the plaintiff further demands that the defend-
ants Erasmus D. Robinson, Tracy R. Morgan, Job N. Congdon, Ben-
jamin Devoe, Edward B. Stephens, Alonzo C. Matthews, Harris G.
Rodgers, Robert Broum and Cyrus Strong be held personally liable for
the payments so withheld, and be adjudged to pay the same; and
plaintiff asks for such other and further relief as shall be just, with
costs of suit.
Edward K. Clark,
Plaintiff's Attorney, Binghamton, N. Y.
( Verification.^-
II. ACTION FOR PERFORMING AUTOPSY WITHOUT PERMISSION.
Form No. 6794.*
Commonwealth of Massachusetts.
Suffolk, ss. In the Superior Court,
September Term, A. D. i807.
Samuel C. Burney )
v. > Plaintiff's Declaration.
The Children's Hospital in Boston. )
And the plaintiff says that on the ninth day of July, in the year of
our Lord one thousand eight hundred and ninety-six, he was the law-
ful father and natural guardian of an infant child named Charles H.
Burney, and by reason thereof was the custodian of the person and
body of said child, and had and exercised control of the will and
movements of said child and that said child was then and there in
his legal possession; and the plaintiff says that he then and there
1. For the form of verification in a 2. This form is copied from the rec-
particular jurisdiction consult the title ord in Burney v. Children s I ospital,
VERIFICATIONS. l6 9 Mass. 57, in which case the declara-
tion was held sufficient on demurrer.
1053 Volume 5.
6794. DEAD BODIES AND CEMETERIES. 6794.
delivered said child to the defendant in the trust and confidence
and upon the promises of the defendant that it would endeavor to
alleviate a condition of body in said child known as hernia, and he
delivered said child to the defendant for no other purpose than as
aforesaid; and while said child was in the possession and custody of
the defendant said child died; and thereupon it became and was the
duty of the defendant to deliver the body of -said child to the plain-
tiff in the same condition in which it then was, to be by the plaintiff
properly and decently buried; yet the defendant, unmindful of said
duty, wilfully, fraudulently, without the authority and against the
wishes of the plaintiff, but in violation and in disregard thereof and
apart from its promise as aforesaid, and trespassing upon the
rights of plaintiff as custodian of the body and person of the said
child as hereinbefore set forth, and outraging said body and also the
plaintiff, and against, as well, the good morals and the peace of the
community, did upon the deceased body of said child, make and
cause to be made, a surgical operation or dissection, and said body
did, with sharp instruments, cruelly, outrageously and sacrilegiously
cut, open, hack, tear and disfigure, and the head and neck so-called
commonly and parts thereof did cut into and displace, and remove
and take away; thereby causing said body prematurely to decay and
rendering the same unfit to be embalmed, as plaintiff had prepared
and contracted to have done to said body; and by reason of the
wrongful acts of the defendant as herein set forth, the plaintiff was
greatly injured in his feelings and was compelled to bury said child
with indecent haste, and to fix an earlier and an unsuitable day and
hour than that first by him announced to the relatives and friends
of the plaintiff for the funeral and religious rites and ceremonies,
upon said body to be performed, and was otherwise greatly outraged
in his feelings and caused great pain of mind.
Second count. And the plaintiff says that he was the father and
natural guardian of an infant child named Charles H. Burney, and
was the lawful custodian of said child, and on the ninth day
of July, A. D. 1 896, said child was in his legal possession; and
on said day said child was suffering from a condition of body
called hernia; and he delivered said child to the defendant and
said defendant took said child for the sole purpose of alleviating said
condition of body; and while said child was so in the custody of the de-
fendant for the purpose of being treated for hernia, on the afternoon
of said day said child died; and thereupon it became and was the
duty of the defendant to deliver the body of said child to the plain-
tiff in the same condition in which it then was to be by said plaintiff
decently and properly buried; yet the defendant, unmindful of its
duty in this behalf, refused to deliver said body to the plaintiff, and
on the morning following wilfully, fraudulently and against the con-
sent of the plaintiff did upon the deceased body of said child make
and cause to be made a surgical operation or dissection, and said
body did, with sharp instruments, cruelly, outrageously and sacri-
legiously cut, open, hack, tear and disfigure, and the head and neck
so-called commonly and parts thereof did cut into and displace and
remove and take away; thereby causing said body prematurely to
1054 Volume 5.
6795. DEAD BODIES AND CEMETERIES. 6795.
decay and rendering the same unfit to be embalmed, as plaintiff
had prepared and contracted to have done to said body and by rea-
son of the wrongful acts of the defendant, as herein set forth the
plaintiff was greatly injured in his feelings and was compelled to bury
said child with indecent haste, and to fix an earlier and an unsuitable
day and hour than that first announced by him to the relatives and
friends of the plaintiff for the funeral and religious rites and cere-
monies upon said body to be performed, and was otherwise greatly
outraged in his feelings and caused great pain of mind.
And the plaintiff says that both counts are for one and the same
cause of action.
Samuel C. Burney,
By Ralph W. Gloag, his Attorney.
Form No. 6795.'
Supreme Court, New York County.
Ann A. Foley, plaintiff, }
vs. V Complaint.
Charles Phelps, defendant. )
The plaintiff complains of defendant and for cause of action alleges,
I. That on or about the sixteenth day of May, iS94, in the city vlNew
York, Thomas F. Foley, who was at said time the husband of the plain-
tiff, fell through an elevator shaft at the Windsor Flat, No. 1700
Broadway, New York City, from the effects of which his ribs on the
left side were broken, and he was otherwise greatly injured by the
shock and fall.
II. That thereupon, without plaintiff's knowledge or consent, he
was immediately carried to Bellevue Hospital, New York City, in an
unconscious condition, and within three hours thereafter, from the
effects of said fall, he died intestate, and without having given the
right to perform an autopsy on his body after his death.
III. That at the time of said death plaintiff, who was a devoted
and loving wife, and upon whom the legal duty and right of burying
her said husband devolved, was present and claimed and demanded
his body, and begged and implored those who were in charge of it at
said hospital not to allow or permit an autopsy to be performed on
it, and gave them notice that she would immediately send an under-
1. This form is copied from the record to the case of a patient who dies, as this
in Foley v. Phelps, i N. Y. App. Div. plaintiff's husband did, in one of the
551. The defendant demurred to the hospitals of the state. The act of
complaint upon the following grounds, (chap. 123) * * expressly prohibits
to wit: the dissection of a dead body, or its
I. That the plaintiff has not legal delivery to any one for the purposes of
capacity to sue. 2. That the complaint dissection, if the relatives and friends of
does not state facts sufficient to consti- the deceased object, or if they make
tute a cause of action. application within a certain time (as
In overruling the demurrer the court appears to have been done in this case)
says: " The unauthorized dissection of for the remains for the purpose of
human remains is a misdemeanor under burial."
the provisions of sections 308 and 309 The decision of the special t<
of the Penal Code of this state. < h ruling the demurrer was affirmed on
There is a statute specially applicable appeal.
1055 Volume 5.
6796. DEAD BODIES AND CEMETERIES, 6796.
taker for the body, who would remove it to her home and properly
prepare it for burial, under her directions.
IV. But that notwithstanding said facts, and her protestations and
legal rights in the premises, the defendant, without her knowledge or
consent, procured, assisted, aided and abetted in performing an
autopsy on her said husband's body, which said autopsy was per-
formed without any authority of law and was wilfully, negligently
and carelessly performed by dissecting and cutting open, mutilating
and otherwise abusing and maltreating said dead body of Thomas F.
Foley.
V. That by reason of said acts the right of the plaintiff, who was
a lawful, loving and devoted wife of said Thomas F. Foley, has been
recklessly and wilfully disregarded and her feelings cruelly lacerated,
and the devotion, love and respect that the plaintiff entertained for
her said husband, has been shocked and wounded and the plaintiff
has suffered greatly therefrom, both in body and mind, to her damages
to wit, in the sum of ten thousand dollars.
Wherefore, she prays judgment against the defendant for the sum
of ten thousand dollars ($10,000), together with the costs and dis-
bursements.
De Witt &> Tabor,
Attorneys for the Plaintiff,
Office and P. O. address, 206 Broadway, New York City.
ill. CRIMINAL PROSECUTIONS.!
1. For Failure to Bury Dead Body.
1. For the formal parts of an indict- Minnesota. Stat. (1894), 6562-
ment, information or criminal com- 6567.
plaint in a particular jurisdiction Mississippi. Anno. Code (1892),
consult the titles INDICTMENTS; INFOR- 1023-1025.
MATIONS; CRIMINAL COMPLAINTS, ante, Missouri. Rev. Stat. (1889), 3842-
p. 930- 3845-
For statutes relating to the subject of Montana. Pen. Code (1895), 510-
dead bodies see as follows: 515.
Alabama. Crim. Code (1886), Nebraska. Comp. Stat. (1897), 6915.
4023-4027. Nevada. Gen. Stat. (1885), 4870.
Arizona. Pen. Code. (1887), 491- New Hampshire. Pub. Stat. (1891),
497. c. 266, 7.
Arkansas. Sand. & H. Dig. (1894), New Jersey. Gen. Stats. (1895), p.
1923-1927. 357. 45.
California. Pen. Code (1897), 290- New York\ Birds. Rev. Stat. (1896),
297. p. 320, I etseq., p. 882, I et seq.
Colorado. Mills' Anno. Stat. (1891), North Dakota. Rev. Codes (1895),
1367. 7188-7202.
Florida. Rev. Stat. (1891), 2625. Ohio. Bates' Anno. Stat. (1897),
Illinois. Starr & C. Anno. Stat. 7034, 7O34a, 7035.
(1896), p. 1306, par. 270. Oklahoma. Stat. (1893), 2188-2202,
Indiana. Horner's Stat. (1896), 2489.
2166-2168. Pennsylvania. Pepp. & L. Dig.
Iowa. Code (1897), 4946. (1894), p. 1161, 156.
Kansas. 2 Gen. Stat. (1897), p. 341, Rhode Island. Gen. Laws (1896), c.
252-254. 257, 2; c. 281, 21.
Kentucky. Stat. (1894), 1335. Tennessee. Code (1896), 6771-
Maryland. Pub. Gen. Laws (1888), 6774.
p. 505, 133. Texas. Pen. Code (1895), art. 367.
1056 Volume 5.
6796. DEAD BODIES AND CEMETERIES. 6797.
Form No. 6796.'
In the District Court of the First Judicial District of the Territory
oi Arizona, in and for the County of Pima, the second toy of June,
IOt7O.
Territory of Arizona
against
John Doe.
John Doe is accused by the district attorney by this information of
the crime of failing to bury a dead body, committed as follows- The
n\& John Doe, on the first day of April, A. D. \W8, at the county of
Pima aforesaid, was a person upon whom was imposed by law the
duty of making burial of the remains of a deceased person, to wit,
Sarah Doe, the wife of the ^\^. John Doe, who died on the said/nv
day of April, A. D. \W8, and he the sa.\(\ John Doe unlawfully neg-
lected to perform said duty within a reasonable time, but kept said
remains unburied until the twentieth day of April, A. D. \W8.
Daniel Webster, District Attorney.
2. For Removing Body. 2
Form No. 6797.
(Precedent in People v. Dalton, 58 Cal. 226.)*
[In the Superior Court of the City and County of San Francisco, State
of California, Monday, the third day of February, iS80.
The People of the State of California \
against v Indictment.
Eugene Dalton. )
Eugene Dalton is accused by the grand jury of the city and county
of San Francisco, state of California, by this indictment of the crime
Utah. Rev. Stat. (1898), 4230, averred it need not be proved. Com.
4231- v. Cooley, 10 Pick. (Mass.) 37.
Vermont. Stat. (1894), 5004. 1. Arizona. Pen. Code (1887), 8 494.
Was h i ngto n. Ballinger's Anno. California. Pen. Code (1897), 293.
Codes & Stat. (1897), 7248. Montana. Pen. Code (1895), 513.
West Virginia. Code (1891), c. 149, North Dakota. Rev. Codes (1895), $
13- 7196-
Wisconsin. Sanb. & B. Anno. Stat. 2. Alabama. The form given in Ala.
(1889), 4592, p. 2309. Crim. Code (1886), p. 275, No. 71, drawn
Wyoming. Rev. Stat. (1887), 1029. under section 402305 the Code, charges
Must Follow Statute. The indictment the offense as follows: "John Doe re-
in charging the offense must strictly moved from the grave the dead body
follow the statute; thus where the stat- of Samuel Short from wantonness, or
ute makes it an offense only where the for the purpose of dissection or sale."
removal is with the intent to sell or dis- 3. It was held that this indictment
sect the same, such an intent must be sufficiently designated and described
averred and proved. Com. v. Slack, 19 the offense, and that a demurrer thereto
Pick. (Mass.) 304; State v. Fox, 136 was improperly sustained. See Cal.
Mo. 141. Pen. Code (1897), 290, and statutes
Ownership. It is unnecessary to cited supra, note I, p. 1056.
avertheownershipof the cemetery from See also the first count to Form No.
which the body is removed, and if 6801, infra.
5 E. of F. P. 67. 1057 Volume 5.
6798. DEAD BODIES AND CEMETERIES. 6798.
of] 1 violating sepulture, committed as follows: The said Eugene Dai-
ton, on the 8th day of July, A. D. i87#, at the City and County of San
Francisco, without authority of law, disinterred and removed from
his place of sepulture, at Laurel Hill Cemetery, in said City and
County of San Francisco, the dead body of the late Elias Lipsis, a
human being, the said dead body not being the dead body of a rela-
tive or friend of the said Eugene Dalton removed for reinterment,
contrary [to the form, force and effect of the statute in such case
made and pr6vided and against the peace and dignity of the people
of the state of California.
D. L. Smoot, District Attorney.] 1
3. For Stealing Body.
a. FOP Purpose of Dissection. 8
Form No.
Commonwealth of Massachusetts.
Essex, to wit: At the Superior Court, begun and holden at the city
of Salem, within and for the county of Essex, for the transaction of
criminal business, on the first Monday of November, in the year of our
Lord one thousand eight hundred and ninety-seven, the jurors for the
commonwealth of Massachusetts on their oath present: that Richard Roe
and Richard Fen, both of Saugus, in said county, on the first day of
October, in the year of our Lord one thousand eight hundred and
ninety-seven, at Saugus, in the county of Essex, with force and arms, the
common burying-ground there situate, 4 being known as the Granary
Bury ing -ground, unlawfully and wilfully did break and enter, and a
grave there, in which a certain human body, to wit, the body of one
John Smith, had lately before been interred, and then was, then and
there unlawfully and wilfully did open, and the body of the said John
Smith then and there in the grave aforesaid being, then and there
unlawfully and wilfully did dig up and disinter, remove and convey
away from and out of the grave aforesaid, the said Richard Roe and
Richard Fen then and there intending to use and dispose of the said
body for the purpose of dissection; 5 the said Richard Roe and Richard
Fen not being then and there authorized so to do, either by the board
of health, or the overseers of the poor, or the directors of the work-
house, or the selectmen of the said town of Saugus, in which the said
grave and the burying-ground aforesaid was and is situate; 6 against
the peace of said commonwealth and contrary to the form of the statute
in such case made and provided.
Daniel Webster, District Attorney.
1. The words and figures enclosed by whom the burying-ground belonged.
[ ] will not be found in the reported Com. v. Cooley, 10 Pick. (Mass.) 37.
case, but have been added to render 5. This is a necessary averment.
the form complete. Com. v. Slack, 19 Pick. (Mass. 304.
2. See also the second count of Form 6. It is sufficient to aver that the de-
No. 6801, infra. fendants were not authorized by the
3. Massachusetts. Pub. Stat. (1882), selectmen, overseers, etc., of the town
c. 207, 47. where the body was buried. Com. v.
4. It is not necessary to allege to Loring, 8 Pick. (Mass.) 370.
1058 Volume 5.
6799. DEAD BODIES AND CEMETERIES. 6800.
Form No. 6799.'
Supreme Court, Chemung County.
The People of the State of New York'
against
Eucebia Fitzgerald, Edmund A. Reilly
and J. Thomas Nealson.
The grand jury of Chemung county by this indictment accuse
Eitcebia Fitzgerald, Edmund A. Reilly and j. Thomas Nealson of the
crime of body stealing, committed as follows: That said Eucebia
Fitzgerald, Edmund A. Reilly and J. Thomas Nealson, on the ninth day
of April, \%>85, at the city of Elmira, in the county of Chemung, with
force and arms, unlawfully and feloniously did remove the dead body
of a human being, to wit, that of William Innne, from a grave or
place where the same had been buried, without authority of law, for
the purpose of dissection, for procuring the reward for the return of
same and for the purpose of malice and wantonness, against the form
of the statute in such case made and provided.
William H. Smith, District Attorney.
b. FOP Purpose of Selling.'
Form No. 6800.
(Precedent in State v. Fox, 136 Mo. 141.)*
[State of Missouri, \ In the Chariton Circuit Court,
'
County of Chariton. ' June term, i8#5.] 4
The grand jurors for the state of Missouri, chosen, selected and
summoned from the body of the county of Chariton, in the state of
Missouri, and impaneled, sworn, and charged to inquire within and
for the body of the said county of Chariton, upon their oath do charge
and present that one James R. Fox, on or about the seventh day of
March, A. D. i8#5, at the county of Chariton, in the state of Missouri,
did then and there unlawfully and feloniously dig up and disinter
and remove the dead body and remains of one Leona Gates, deceased,
from the grave in which said body and remains had before been
interred, and then and there was, for the purpose of selling the said
dead body and remains, against the peace and dignity of the state.
* * *5 And the grand jurors aforesaid, upon their oaths aforesaid,
1. This form is substantially the in- of selling the corpse. The indictment
dictment in the case of People v. Fitz- was drawn under Mo. Rev. Stat. (1889),
gerald, 43 Hun (N. Y.) 35, in which 3842. See also list of statutes cited
case the conviction was afterward re- supra, note i, p. 1056.
versed by the court of appeals (155 4. The words and figures enclosed by
N. Y. 151), although the indictment as [1 will not be found in the reported
to form is good. See N. Y. Pen. Code, case, but have been added to render
311 (Birds. Rev. Stat. (1896), p. 321, the form complete.
4). 5. A demurrer was sustained to a
2. See also the third count of Form further count in this indictment, which
No. 6801, infra. was as follows:
3. It was held in this case that a con- "And the grand jurors aforesaid,
viction could not be sustained, for the upon their oaths aforesaid, do further
evidence, although showing the disin- present and charge that one James K.
terment, failed to disclose any intention Fox, on or about the twelfth day of
1059 Volume 5.
6801. DEAD BODIES AND CEMETERIES. 6801.
do further charge and present that the said James R. Fox, on or
about the twelfth day of March, A. D. iS95, at and in the county of
Chariton, in the state of Missouri, did then and there unlawfully and
feloniously dig up, and disinter and remove the dead body and
remains of a human being, to wit, the dead body and remains of one
Leona Gates, deceased, from the grave in which said body and remains
had then before been interred, and then and there was, from mere
wantonness and mischief, against the peace and dignity of the state.
[Solomon Sayers, Prosecuting Attorney
for the County of Chariton.] x
4. For Receiving* Stolen Body.
Form No. 6801.
(Precedent in People v. Graves, 5 Park. Cr. Rep. (N. Y. Supreme Ct.) 135.)*
State of New York, Ontario County, ss.
The jurors for the People of the State of New York, and for the
body of the county of Ontario, to wit, Jonas M. Wheeler {Here fol-
low names of the grand jurors), being sworn and charged to inquire
for the People of the said State and for the body of the county afore-
said, upon their oath, present that John C. Weed, Alanson R. Simmons
and Judson H. Graves, late of the town of Bristol, in the county afore-
said, on the 1st day of June, i858, with force and arms, at the town
of Bristol, in the county aforesaid, a graveyard situated in the said
town of Bristol, county of Ontario aforesaid, did enter, and the grave
therein in which the body of one Martha J. Brockelbank, deceased,
had lately before then been interred, and then was, with force and
arms unlawfully, voluntarily, willfully and indecently did dig, open
and afterward, to wit: on the same day and year aforesaid, with force
and arms at the town of Bristol, in the county aforesaid, the dead
body of her, the said Martha J. Brockelbank, out of the grave afore-
-said, unlawfully, feloniously and indecently did take and carry away,
against the form of the statute in such case made and provided and
against the People of the State of New York and their dignity.
And the jurors aforesaid upon their oath aforesaid do further
present that the said John C. Weed, Alanson R. Simmons and Judson
H. Graves, on the day and year last aforesaid, and at the town,
county and state aforesaid, a graveyard situated in the said town of
Bristol and county aforesaid, did enter and the grave in which the
March, A. D. 1895, at the county of of said dead body and remains, against
Chariton in the state of Missouri, did the peace and dignity of the state."
then and there unlawfully and feloni- 1. The words and figures enclosed by
ously dig up, disinter and remove the [ ] will not be found in the reported
dead body and remains of a human case, but have been added to render
being, to wit, the dead body and re- the form complete.
mains of one Leona Gates, from the 2. The third count only of this in-
grave in which the said dead body and dictment is for receiving a stolen body;
remains had then before been interred the first is for stealing generally, the
and then and there was, for the pur- second for stealing for the purpose
pose of dissection and surgical and of dissection, and the third for stealing
anatomical experiment and preparation for the purpose of sale.
1060 Volume 5.
6802. DEAD BODIES AND CEMETERIES. 6802.
body of one Martha J. Brockelbank, deceased, had lately before then
been interred, and then was, with force and arms, unlawfully, volun-
tarily, willfully, feloniously and indecently, did dig, open and after-
ward, to wit: on the same day and year aforesaid, with force and
arms at the town of Bristol in the county and state aforesaid, the
dead body of her, the said Martha J. Brockelbank, out of the grave
aforesaid, unlawfully, feloniously and indecently did take, remove
and carry away for the purpose of dissection, against the form of the
statute in such case made and provided and against the peace of the
People of the State of New York and their dignity.
And the jurors aforesaid upon their oath aforesaid do further
present that the said John C. Weed, Alanson R. Simmons and Judson
H. Graves on the day and year aforesaid, at the town, county and
state aforesaid, a graveyard situated in the said town of Bristol,
county aforesaid, unlawfully did enter and the grave there, in which
the body of one Martha J. Brockelbank, deceased, had lately before
then been interred and then was, with force and arms unlawfully,
voluntarily, willfully, feloniously and indecently did dig open and
afterward, to wit: on the same day and year aforesaid, with force
and arms, at the town and county aforesaid, the dead body of her the
said Martha J. Brockelbank, out of the grave aforesaid, unlawfully,
feloniously and indecently did take, remove and carry away, for the
purpose of selling the same, against the form of the statute in such
case made and provided and against the peace of the People of the
State of New York and their dignity.
And the jurors aforesaid, upon their oath aforesaid, do further pre-
sent that the said John C. Weed, Alanson R. Simmons and Judson H.
Graves afterward, to wit: on the same day and year last aforesaid at
the town of Bristol, in the county aforesaid, the dead body of one
Martha J. Brockelbank, deceased so as aforesaid, unlawfully, feloni-
ously and indecently dug up from the grave aforesaid and unlawfully
and indecently taken and carried away as aforesaid, from said grave,
unlawfully, feloniously and indecently, did receive for the purpose of
dissection, they, the said John C. Weed, Alanson R. Simmons and
Judson H. Graves then and there well knowing the said dead body of
the said Martha J. Brockelbank, deceased, to have been so as afore-
said, unlawfully, feloniously and indecently dug up, taken and car-
ried away from the grave aforesaid for the purpose of dissection,
against the peace of the People of the State of New York and their
dignity, and against the form of the statute in such case made and
provided.
Wm. H. Smith, District Attorney.
5. For Destroying: Cemetery Property.
Form No. 6802.'
In the name and by the authority of the state of Texas. The
1. The charging part of this indict- identical with Tex. Pen. Code (1895),
ment was held sufficient in Phillips v. art. 266.
State, 29 Tex. 226, under a statute For other statutory provisions relat-
1061 Volume 5.
6802.
DEAD BODIES AND CEMETERIES.
6802.
grand jurors for the county of Wharton and state of Texas, duly
organized as such at the October Term, A. D. i8#7, of the District
Court for said county, upon their oaths in said court, present that
William J. Phillips and Jim Phillips, on the twenty-fifth day of March,
A. D. i8P, with force and arms, in the county aforesaid, did then and
there 1 wrongfully destroy and remove 2 the fence from around a cer-
tain graveyard 3 near the town of Wharton, in said county and state,
which said fence was placed around said graveyard for its protection
and inclosure, against the peace and dignity of the state of Texas.
James Joyce, Foreman of the Grand Jury.
ing to the destruction of cemetery
property and unlawful usage of ceme-
teries see as follows:
Alabama. Crim. Code (1886), 4028.
Arizona. Pen. Code (1887), 497.
California. Pen. Code (1897), 296.
Delaware. Rev. Stat. (1893), p. 970,
.170, I.
Florida. Rev. Stat. (1892), 2626.
Georgia. 3 Code (1895), 719, 720.
Illinois. Starr & C. Anno. Stat.
(1896), p. 552, par. 15, p. 1306, par. 271.
Indiana. Homer's Stat. (1896),
1962.
Iowa. Code (1897), 558.
Kentucky. Stat. (1894), 1336.
Maryland. Pub. Gen. Laws (1888),
P- 506, 135.
Massachusetts. Pub. Stat. (Supp.
1888), p. 786, c. 395.
Minnesota. Stat. (1894), 6786.
Montana. Pen. Code (1895), 516.
Nebraska. Com p. 'Stat. (1897),
6761, 6762.
New Hampshire. Pub. Stat. (1891),
c. 266, 8-10.
New Jersev. Gen. Stat. (1895), p.
36i, 57, 58.
New York. Birds. Rev. Stat. (1896),
p. 1938, cl. 10.
North Carolina. Code (1883), 1088.
North Dakota. Rev. Codes (1895),
7204.
Ohio. Bates' Anno. Stat. (1897),
7036, 7037-
Oklahoma. Stat. (1893), 2204.
Oregon. I Hill's Anno. Laws (1892),
1876, 1877.
Pennsylvania. Pepp. & L. Dig.
(1894), p. 516, 6, p. 1260, 417.
Rhode Island. Gen. Laws (1896), c.
279, 23, c. 281, 22.
Tennessee. Code (1896), 89.
Utah. Rev. Stat. (1898), 4232.
Vermont. Stat. (1894), 5007.
Washington. Ballinger's Anno.
Codes & Stat. (1897), 7249.
Wisconsin. Sanb. & B. Anno. Stat.
(1889), 4443-
1. Then and There. An indictment
for cutting trees on the land of a ceme-
tery company is sufficiently specific
without containing the words " then
and there." Mettler v. People, 36 111.
App. 324.
2. Description of Acts. The indict-
ment may properly charge conjunc-
tively acts constituting the offense
which are stated disjunctively in the
statute. Phillips v. State, 29 Tex. 226.
3. Description of Cemetery. The in-
dictment is sufficiently specific without
describing the land. Mettler v. People,
36 111. App. 324. Nor need the indict-
ment show whether the cemetery is
public or private; nor that it has been
dedicated or set apart for public or
private use in some method prescribed
by the laws of the state. Lay v. State,
12 Ind. App. 362. But if an indictment
for wrongfully desecrating a public
burying ground contains an accurate
description by metes and bounds, the
proof must correspond with the aver-
ment, and it is not sufficient to prove
that a part of the lot described was a
public burying ground, although the
acts complained of were committed
upon that part. Com. v. Wellington,
7 Allen (Mass.) 299.
The indictment need not designate
the name of the person whose tomb has
been defaced, nor is it necessary to
charge that the dead body was that of
a human being. State v. Wilson, 94
N. Car. 1015.
1062
Volume 5.
INDEX.
AFFIDAVITS.
Contempt, 6175 et seq.
Continuances and adjournments, 6259 ft seq.
ANSWERS.
Confession and avoidance, 6011-6014.
Contributory negligence, 6352.
Coverture, 6633-6636.
Criminal conversation, 6738, 6739.
Cross-complaints, 6742.
ATTACHMENT.
Contempt, 6193 et seq.
BAIL AND RECOGNIZANCE.
Compounding offenses (order discharging recognizance), 5980.
Confession of judgment, 6061.
COMPLAINTS.
Criminal conversation, 6734-6737.
COMPOUNDING OFFENSES.
Compromise by leave of court, 5978-5980.
Criminal compounding, 5967-5977.
COMPROMISE.
Compromise agreements, 5999-6002.
Offer to be defaulted, 5997, 5998.
Offer to compromise by allowing judgment, 5981 et seq.
CONCEALED WEAPONS Volume 4, page 351.
CONCEALMENT OF BIRTH OR DEATH.
Aiding, abetting and assisting, 6010.
Children, 6003-6009.
CONDEMNATION PROCEEDINGS Cross-Reference.
CONFESSION AND AVOIDANCE.
By notice of special defense, 6019.
By plea or answer, 6011-6014.
By replication or reply, 6015-6018.
CONFESSION OF JUDGMENT.
After action commenced, 6048 et seq.
Attorneys, 6051-6057.
Before action commenced, 6023 et seq.
Confession, 6023 et seq.
1063 Volume 5.
^References Indicate INDEX. the Number of Form.
CONFESSION OF JUDGMENT Continued
Corporations, 6058.
Executor, 6059.
Guardian of lunatic, 6060.
Judgment, 6062-6086.
Offer to confess judgment, 6021, 6022.
Recognizance for debt, 6061.
Warrant of attorney, 6087-6089.
CONSIDERATION.
Consideration tainted with usury, 6110.
Failure of consideration, 5093 et seq.
Illegal consideration, 6102-6109.
Want of consideration, 6090-6092.
CONSOLIDATION OF ACTIONS.
By consent of parties, 6119, 6120.
By motion or order, 6112-6118.
By plaintiff, 6m.
CONSOLIDATION OF CORPORATIONS Cross-reference.
CONSPIRACY.
Abduction of child, 6136.
Abortion, 6137.
Adultery, 6121.
Appointment to public office, 6161.
Assault and battery, 6138.
Assaulting a public officer, 6157.
Attempt at murder, 6122.
Bank, 6125, 6126.
Being the father of a bastard, 6123.
Boycotting manufacturer, 6172.
Breaking jail, 6139.
Cast away vessel with intent to injure underwriters, 6162.
Cheat and defraud, 6171.
Cheat or defraud, 6125-6135.
Civil actions, 6170-6174.
County, 6127.
Criminal prosecution, 6121 et seq.
Destroying property, 6142.
Extorting money from employer by threatening workmen to leave his
employ, 6173.
Falsely charging with criminal offense, 6121-6124.
Falsely to accuse plaintiff of criminal offense, 6169.
Federal statutes, 6162-6169.
Fictitious census returns, 6165.
Formation of trust, 6153.
Giving false evidence and suppressing facts on trial, 6158.
Hinder trade or comn.erce, 6172.
Individual, 6128.
1064 Volume 5.
Beferences Indicate INDEX. the Number of Form.
CONSPIRACY Continued.
Injuring credit of retail dealer and preventing his obtaining supplies, 6174.
Larceny, 6124.
Murder,, 6144.
Obstructing business of a corporation, 6154.
Obstructing justice and due administration of law, 6156-6161.
Plunder a wrecked steamboat, 6166.
Preventing corporation from employing certain workmen, 6155.
Preventing enjoyment of elective franchise and civil, 6167.
Preventing exercise of right of suffrage, 6168.
Preventing homestead entry, 6167.
Preventing workman from obtaining employment, 6156.
Procuring defilement of young female, 6146.
Procuring elopement of a minor daughter, 6147.
Procuring inspector of elections to neglect his duty, 6169.
Procuring marriage falsely to appear of record, 6148.
Robbery, 6149.
Seduction by sham marriage, 6151.
Soliciting bribes, 6152.
To commit certain crimes, 6136-6152.
To defraud the United States, 6163.
To hinder trade or commerce, 6153-6155.
Unlawfully obtaining a decree of divorce, 6159.
Unlawfully taking intoxicating liquors held under lawful seizure, 6160.
CONSTABLES Cross-Re ferenee.
CONTEMPT.
Affidavit, 6175 et seq.
Attachment, 6193 et seq.
Attachment for failure to obey, motion for, 6186-6188.
Attachment for failure to obey, petition for, 6188.
Commitment, 6231-6248.
Contemnor's defenses and remedies, 6250-6255.
Criminal prosecution, 6249.
Information for contemptuous publication, 6185.
Interrogatories to contemnor, 6223-6225.
Order discharging from imprisonment, 6253.
Order of conviction, 6228-6240.
Order to show cause, 6189-6192.
Pardon, 6254.
Petition for revocation of order of commitment, 6252.
Proceedings against contemnor, 6175 et seq.
Proceedings connected with reference, 6226, 6227.
Writ of prohibition forbidding commitment, 6255.
CONTINUANCES AND ADJOURNMENTS.
Absence of counsel, 6261-6269.
Absence of documents, 6299.
Absence of party, 6270, 6271.
Absence of witness, 6272 et seq.
Additional or amended affidavit, 6304.
1065 Volumes.
Eeferences Indicate INDEX the Number of Form.
CONTINUANCES AND ADJOURNMENTS Continued.
Adjournments, 6311-6315.
Affidavit for continuance, 6.59 et seq.
Another suit pending, 6300.
Certificate of physician, 6305.
Counter-affidavits, 6308.
Motion for continuance, 6257-6258.
Notice of motion for continuance, 6256.
Order of continuance, 6309.
Order setting aside order for continuance, 6310.
Public excitement and prejudice, 6260.
Stipulation for continuance, 6306, 6307.
Surprise at trial, 6301-6303.
Want of preparation, 6259.
CONTRACT LABOR LAW.
Action for penalty, 6316-6318.
Criminal prosecution, 6317.
CONTRACTS Cross-reference.
CONTRACTS OF HIRE.
Actions ex contractu, 6318-6328.
Actions ex delicto, 6329-6331.
Bailee for damages due to defect in chattel, 6331.
Bailee for defect in chattel, 6327.
Bailor for improper use of chattel, 6329, 6330.
By bailor, 6318-6326.
CONTRIBUTION.
Between co-debtors in general, 6332-6337.
Between co-devisees and co-legatees, 6349.
Between co-sureties, 6338-6343.
Between joint owners of property, 6346-6348.
Between joint tort-feasors, 6350.
Between partners, 6344.
Between stockholders, 6345.
CONTRIBUTORY NEGLIGENCE.
Answer, 6352.
Plea, 6351.
CONVERSION Cross-Reference.
CONVICTS.
Certificate of vocation, 6358.
Discharge of poor convicts, 5353-6357.
Indictment for cruel and inhuman treatment of convict, 6360.
Oath of county convict of inability to pay fine, 6359.
COPYRIGHT.
Infringement proceedings, to prevent, 6361 et seq,
Statutory penalties, action for, 6371, 6372.
Unpublished manuscript, action for violation of common-law right, 6373.
CORAM NOBIS Cross-Rfftrence.
1066 Volume 5.
Kefereaces Indicate INDEX. ' the If amber of Farm.
CORAM V OBIS Cross-Kef erence.
CORONER'S INQUESTS.
Certificate that inquest is unnecessary, 6374, 6375.
Examination of witness, 6382.
Inquisition, 6383-6385.
Subpoena, 6380, 6381.
Venire, 6376-6379.
Warrant of commitment, 6388.
Warrant of arrest, 6386, 6387.
CORPORATIONS.
Application, 6389, 6390. ^
Application, granting of, 6391.
Certificate of incorporation, granting of, 6392-6396.
Confession of judgment, 6058.
Consolidated corporations, 6397 et seq.
Dissolution of corporations, 6422 et seq,
Incorporation, 6389-6391.
Reorganized corporations, 6417 et seq,
Winding up of corporations, 6422 et seq.
COSTS.
Action to recover costs against party discontinuing action, 6589.
Additional allowance, 6573 et seq.
Award of costs, 6578 et seq.
Dismissal for failure to give security, 6525 et seq.
Notice to recover illegally exacted costs, 6590 et seq.
Security for costs, 6476 et seq.
Suits in forma pauperis, 6533 et sq.
Taxation of costs, 6549 et seq.
COUNTERCLAIM Cross-Reference.
COUNTERFEITING.
Counterfeit money in one's possession, 6617-6624.
Green goods, advertising of, 6616.
Instruments for counterfeiting in one's possession, 6626-6629.
Making counterfeit money, 6591-6604.
Making instruments for counterfeiting, 6625.
Selling and bartering counterfeit money, 6614-6616.
Uttering and passing counterfeit money, 6605-6613.
COUNTY COMMISSIONERS Cross-Re/erence.
COUPONS Cross- Reference.
COVENANT.
At common law, 6630, 6631.
In the United States, 6632.
COVENANTS Cross-Reference.
COVERTURE.
Plea, answer or affidavit of defense, 6633-6636.
Replication, 6637, 6638.
1067 Volume 5.
Beferences Indicate INDEX. the Number of Form.
CREDITOR'S SUITS.
Creditors of a corporation, 6653.
Dower interest not set' off, 6640.
Judgment standing in favor of debtor, 6641.
Patent-right, 6642^
Property in name of another where purchase money was furnished by
debtor, 6643, 6644.
Royalty payable under a publisher's contract, 6645.
To enjoin transfer of note and foreclosure of mortgage held by debtor, 6651.
To obtain discovery of property of judgment debtor, 6652.
To subject property not reachable by execution, 6639 et seq.
Treasury warrant, 6646.
Trust property, 6647-6650.
Unpaid stock subscriptions, 6654.
CRIME AGAINST NATURE.
Assault with intent to commit, 6657.
Solicitation to commit, 6658.
CRIMINAL COMPLAINTS.
Offenses triable in justices' and other inferior courts, 6709 et seq.
Preliminary proceedings, 6662 et seq.
CRIMINAL CONVERSATION.
Answer or plea, 6738, 6739.
Complaint, declaration or petition, 6734-6737.
CROSS-COMPLAINTS.
Answer and cross-petition, 6742.
In general, 6740, 6741.
CRUELTY TO ANIMALS.
Cruelly abandoning, 6744 and 6745.
Failure to provide proper food or shelter, 6751-6753.
In general, 6743.
Pigeon shooting, 6760.
Tormenting and torturing, 6746-6750.
Transporting, 6754, 6755.
Working animals, 6756-6759.
CRUELTY TO CHILDREN.
Exposing to inclemency of weather, 6762.
Illegal employment, 6766-6770.
In general, 6761.
Neglecting to provide support, 6763-6765.
DAMAGES, OFFER TO LIQUIDATE.
The acceptance, 6772.
The offer, 6771.
DANGEROUS AND VICIOUS ANIMALS.
Civil actions for injuries, 6773-6778.
Criminal prosecutions, 6779-6781.
1068 Volume 5.
Beferences Indicate INDEX. the Number of Form.
DEAD BODtES AND CEMETERIES.
Accounting by holders of cemetery bonds, to compel, 6793.
Actions relating to cemeteries, 6792 et seq.
Assessment proceedings, 6782, 6783.
Autopsy without permission, action for performing, 6794, 6795.
Bill for injunction to prevent removal of body, 6788.
Bill for permission to remove body, 6787.
Bill to compel restoration of body to lot, 6789.
Criminal prosecutions, 6796 et seq.
Damages, actions for, 6790-6792.
Destroying cemetery property, 6802.
Failure to bury dead bodies, 6796.
Non-communicant, to restrain burial of, 6784.
Removing body, 6797.
Stealing body, 6798-6800.
Stolen body, for receiving, 6801.
To recover plot, answer setting up dedication and occupancy, 6785.
DECLARATIONS.
Criminal Conversation, 6734-6737.
EXECUTORS.
Confession of judgment, 6059.
GUARDIANS.
Confession of judgment, 6060.
INJUNCTIONS.
Contempt, 6176, 6186-6188.
MOTIONS.
Consolidation of actions, 6112-6118.
PETITIONS.
Criminal conversation, 6734-6737.
PLEAS.
Confession and avoidance, 6011-6014,
Contributory negligence, 6351.
Coverture, 6633-6636.
Criminal Conversation, 6738, 6739.
REPLICATION.
Confession and avoidance, 6015-6018.
Coverture, 6637, 6638.
ORDERS.
Consolidation of actions, 6112-6118.
See Contempt.
1069 Volume 5.
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