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^ 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 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 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 " / 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 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 Judgment on having this ninth day of February, Richard Roe, defendant. ) Confession. i8. \ '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 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 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 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 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, i8q8. 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&\& 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/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 /. 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 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. 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. (. 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&\& 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 / 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 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 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/ 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 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. 6272. 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. 6272. AD JO URNMENTS. 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. 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 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. 6294. 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. 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

- 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 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 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 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 . 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 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, 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, 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 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 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/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 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 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, / 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. 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, 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 > 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. 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, 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' thousand (50,000.00) dollars in the aggregate; that a large part of said unsecured indebtedness, to wit: the sum of not lessyfo, 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 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, 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 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. ( 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. ) 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. ) (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/ 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 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// 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 #// 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. ) (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/ 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 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 aforesaidya\& 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. 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 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 &\& 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- 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^ 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 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 " 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, 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? 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. 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 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 , 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. 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 /# 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. \ A 000770614 6